The VA's independent watchdog has charged that the Trump administration's acting secretary has blocked access to data on whistleblower complaints in a possible violation of the law.
In an increasingly vitriolic exchange of letters, VA Inspector General Michael Missal and acting VA Secretary Peter O'Rourke have questioned each other's motives and authorities in matters relating to the implementation of the Accountability and Whistleblower Protection Act.
The bill, which passed last year, has been hailed by President Donald Trump as one of the signature achievements of his administration in its effort to root out poor performers at the Department of Veterans Affairs.
In a June 5 letter to O'Rourke, Missal charged that his Office of the Inspector General (OIG) had been blocked for the past six months by the VA's Office of Accountability and Whistleblower Protection (OAWP), which was formerly headed by O'Rourke, from gaining access to records on whistleblowers.
"Despite repeated assurances that these records would be made available, the OIG has not yet been provided this important information," Missal said. "Refusing to provide this information not only violates the law, but also hinders the OIG's ability to fulfil its statutory oversight function."
In his June 11 reply, O'Rourke charged that Missal's demands were overreaching. He said the inspector general's "lack of cooperation" amounted to "promoting the flawed culture the VA Accountability and Whistleblower Protection Act was meant to address."
"You also appear to misunderstand the independent nature of your role and operate as a completely unfettered autonomous agency," O'Rourke told Missal.
O'Rourke's reply was heated.
"You are reminded that [the inspector general] is loosely tethered to VA, and in your specific case as the VA inspector general, I am your immediate supervisor. You are directed to act accordingly," O'Rourke said.
On June 18, Missal wrote back that he was notifying Congress of O'Rourke's refusal to give him access to the complaint database.
O'Rourke did not "provide any factual or legal basis for the failure to allow my office the access to the OAWP records to which the OIG is entitled, and it is not clear why the Department is resisting our access to these records," Missal charged.
"The Department's withholding access to OAWP records raises serious concerns, and your unsupported and false accusations of the OIG's lack of cooperation and substandard investigations is equally concerning," he said.
Missal repeated his accusation that O'Rourke was in violation of the law on the OIG's oversight mission.
"The Department has no basis to withhold the OAWP materials requested by the OIG and its continued refusal to provide this information is contrary to law," Missal said.
O'Rourke's letter to Missal was an "unprecedented attack" on the inspector general in its efforts to investigate complaints by VA employees that the new leadership at the VA was "using the [accountability] bill to inappropriately retaliate against whistleblowers" who came forward with complaints that could reflect on the Trump administration, Rep. Tim Walz, D-Minnesota, said in a statement.
"The letter sent from Acting Secretary O'Rourke to VA Inspector General Missal is beyond the pale, even for this administration," said Walz, the ranking member of the House Veterans Affairs Committee.
"In his letter, O'Rourke made an explicit attempt to intimidate the Inspector General and deter the VA Office of Inspector General from carrying out its legal duty to hold VA officials accountable to the American people and the veterans among them. This is extremely unacceptable," Walz said.
In a June 1 letter to the inspector general, four Democratic senators asked Missal to investigate allegations that VA managers were using to the Accountability Act to go after employees for spurious reasons, such as moving too slowly after a workplace injury.
"We have had numerous VA employees and their representatives contact our offices about the law's implementation, indicating that the authorities provided by the law are being used in an inconsistent and inappropriate manner," the senators said.
"Unfortunately, VA still has not been able to provide us with data that would alleviate our concerns or demonstrate in any way that application of these authorities has been consistent, fair and appropriate," said the letter, signed by Sens. Jon Tester, D-Montana, Richard
Blumenthal, D-Connecticut, Tammy Baldwin, D-Wisconsin, and Sherrod Brown, D-Ohio.
In a letter to Baldwin on June 1, O'Rourke wrote that since the bill was enacted last June through March of this year, the VA has issued "over 1,500 admonishments, over 1,600 reprimands, and over 1,400 suspensions of 14 days or less."
During the first five months of 2018, the VA fired a total of 912 employees, demoted 36 and suspended 26 for 14 days or longer, according to a June 7 VA report.
"The total lack of cooperation from the VA is alarming and a disservice to American veterans and taxpayers," Tester, the ranking Democrat on the Senate Veterans Affairs Committee, said in a separate statement.
"I'm demanding the VA immediately comply with the IG's request for access to information. The VA leadership that prides itself on transparency is not above the law or exempt from independent oversight," he said.
In a report Tuesday, the American Federation of Government Employees (AFGE), the largest federal workers union, charged that the Accountability Act has proven to be a "massive failure" one year after Trump signed it into law, and has been used to target low-level workers while allowing top managers to escape responsibility.
"Over a year ago we said that bill would lead to frontline workers being targeted and intimidated by management seeking to cover up their own malfeasance, and a year later we are being proven right," said AFGE Legislative Director Tom Kahn. "The Accountability Act has been used to silence whistleblowers, retaliate against workers, and fire veterans."
Many of the low-level jobs targeted by the act "are occupied by veterans and disabled veterans," the AFGE report said, "but managers are using the law to fire first time offenders, those missing deadlines or moving slowly after an injury -- hardly an offense that warrants immediate termination."
In his letter to Missal, O'Rourke charged that the OIG's office had repeatedly failed to "demonstrate due professional care" in recent reports and was "not performing its responsibilities in a fair and objective manner."
O'Rourke had been chief of staff at the VA before he was named by Trump to the interim post as acting Secretary pending Senate confirmation of the nomination of Robert Wilkie to the permanent position.
Wilkie, the former Defense Department under secretary for Personnel & Readiness, was moved over to the VA as acting Secretary following the ouster of former VA Secretary Dr. David Shulkin in March.
Wilkie stepped down as acting secretary to avoid a potential conflict with regulations barring acting secretaries from succeeding to the permanent job. No date has yet been set by the Senate Veterans Affairs Committee for Wilkie's confirmation hearing.
-- Richard Sisk can be reached at Richard.Sisk@Military.com.
