VA Scandal: Is Obama’s Whistleblower Button Reset?

Cable news and the online media are blazing with stories about the newest Veteran Administration’s scandal of manipulating appointments for much-needed health care access to our veterans. This scandal is not new. There have been investigative government reports on this type of fraud and other health care problems for decades with the VA. However, it has now caught the attention of the public, and the politicians are maneuvering, in their usual sordid manner, to show their shock and get airtime to denounce this insult to our veterans. Some are also even raising campaign money by claiming that the other political party is solely responsible for this problem.

Now that General Eric Shinseki has resigned, the story will stay in the news for more than a few news cycles while a replacement is found and reforms are considered. But after the scandal is “resolved” in the politicians’ minds, the first causality will be the VA whistleblowers who have gone public and still work in the government.

These are the type of whistleblowers that President Obama has publicly claimed he will support. President-elect Obama’s transition team pledged to step up to protect whistleblowers during his transition by stating on its website:

Protect Whistleblowers: Often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance. Barack Obama will strengthen whistleblower laws to protect federal workers who expose waste, fraud, and abuse of authority in government. Obama will ensure that federal agencies expedite the process for reviewing whistleblower claims and whistleblowers have full access to courts and due process.

Good government groups worked with Obama on strengthening whistleblower laws and agreed with Politifact that the laws that he has passed do, on paper, make it safer to be a federal whistleblower. Politifact states:

On Nov. 27, 2012, Obama signed the Whistleblower Protection Enhancement Act into law, after it had been passed on a bipartisan basis.

The law strengthened and expanded already existing protections for whistleblowers, and for the first time entitled whistleblowers to compensatory damages in cases of wrongful reprisal. Other key reforms include protections for federal scientists and Transportation Security Administration officers, as well as for federal employees who are not the first to disclose a case of misconduct.

To inform workers about their rights and protections, the law also requires agencies to create whistleblower ombudsmen at the Inspector General offices. Additionally, the law strengthens the power of the Office of Special Counsel by giving it the authority to take disciplinary actions against those who retaliate.

The law was lauded by whistleblower advocates. Tom Devine, legal director at the Government Accountability Project, specifically praised President Obama’s “unprecedented leadership” in passing the law. “He was the first president in history not only to support government whistleblower rights in principle, but to engage the White House directly into making them as strong as possible,” Devine said.

Regardless of all its new benefits, the law falls short in two major areas: It does not give whistleblowers access to jury trials, and its free speech protections don’t extend to the intelligence community.

I have written in another column about the distinction and the problem that Obama makes when it comes to national security whistleblowers. He believes that there is a difference between people who leak classified material that contains sensitive military information versus government worker whistleblowers who leak about fraud in a bureaucracy. I do not agree with his definitions. Having spent my career working with both types of whistleblowers, I can tell you that there isn’t much difference because the CIA, NSA and DOD intelligence bureaucracies don’t act much differently than the VA or the Department of Agriculture in hiding their mistakes or fraud. The government intelligence community just has the better tools to do it in classified documents and claims of patriotism. When the Congress refused to include national security whistleblowers in the new whistleblower reforms, Obama did sign a Presidential Policy Directive to, on paper, try to have more support for national security whistleblowers. However, in practice, he still has the most aggressive prosecutions against national security whistleblowers in history.

A problem with all non-intelligence government workers in the federal bureaucracy is that they don’t have the same rights as other workers when fired or harassed in their jobs. They cannot go through the normal federal courts. They have the independent agency of Office of Special Counsel (OSC) to go to for redress against retaliation, and if an agreement cannot be worked out, they can go to the quasi-judicial Merit Systems Protection Board (MSPB) for “trial.” I have taken whistleblowers through this process, and although Obama’s new laws have strengthened it, it is unwieldy and infrequently successful for the whistleblower.

Although the success for federal whistleblowers has improved under Obama, Politifact shows that the odds of being made well after blowing the whistle are low in this alternative court situation:

The last two years have been the most successful in OSC’s history in achieving favorable actions for whistleblowers – like the rehiring of a fired employee or the reprimand of a supervisor. For over a decade, OSC counted less than 100 successful favorable actions a year (including an all time low of only 29 in 2007), but in the fiscal year of 2012 they were able to reach 159 favorable actions, and this year it was 160.

For employees who appear before the Merit Systems Protection Board, the situation hasn’t improved as much. “The percentage of cases decided in favor of employees has increased from less than 2 percent to about 3 to 4 percent,” said David Pardo, an attorney who runs the website MSPB Watch.

VA whistleblowers have been going to various media outlets for years on the problems in the VA. CNN’s investigative team of Scott Bronstein and Drew Griffin reported last November about the waiting list problem.

And although there have been quite a few VA whistleblowers who have gone public since the Arizona Republic wrote about Dr. Sam Foote‘s attempts to expose the appointment scam, there has been several public whistleblowers who blew the whistle on the VA, and the OSC process failed to provide them with any redress. Dr. Richard Krugman oversaw a VA facility near Harlingen, Texas. He became concerned when his supervisor said, in 2011, that to save money on cancer-screening colonoscopies, the VA would wait for three fecal blood positive tests before allowing veterans to have the potentially life-saving treatments. He wrote his supervisor in protest because he believed that a veteran who had to wait for that unusual protocol could go from treatable Stage I colon cancer to deadly Stage IV.

He was fired and went to the OSC for redress. OSC investigated and found no problem. However, the OSC was not the one to do the investigation. According to Fox News:

The Office of Special Counsel referred the matter to the VA, which partially substantiated some of the claims. The investigative panel assigned to get to the bottom of Krugman’s allegations was appointed by VA Under Secretary of Health Robert Petzel, who resigned Friday.’

. . . Petzel told congressional oversight committee members . . . “What I really got upset about was, over the last couple of weeks, everybody is now saying, ‘Oh, I never knew that. Oh, I didn’t see that,” Krugman said in an interview with Fox News. “The reports have been there since 2010, 2011, and each article, or each new material that I received, I purposely sent to those different gentlemen, with a backup copy, just so that they can’t say, ‘Oh, I never knew this, or I never knew that because every time that they say, ‘I don’t know this or I don’t know that,’ somebody else dies.”

So the OSC relied on the VA to investigate itself while dozens of its facilities were falsifying records in other cases. Because Dr. Krugman wasn’t lucky enough to have his whistleblowing happen during the current media and congressional feeding frenzy, his career was destroyed with no other place to redress his complaint.

Dr. Jose Mathews, was the chief of staff of psychiatry in the St Louis VA hospital – a post that he took over in 2012. His unit was essential because it was addressing the problems of posttraumatic stress and other war problems that have led to shockingly high suicide rates among our returning troops. However, he found that the psychiatric staff was seeing only about half the patients that they should be seeing in a day. This was causing unnecessary long wait times for troubled vets to get the mental health care that they needed. After he reported the problem to his superiors, he was shaken at the reaction to his saying that the patients needed more help, and more doctors needed to see more patients in a day. From The Boston Globe:

“There is no conceivable reason a full-time psychiatrist should be seeing just six patients in a day,” Mathews said. “It was causing this huge delay in access to care.”

Mathews said he implemented several changes aimed at providing more timely treatment, but his efforts were met with opposition by staff. He was able to increase the average number of patients per psychiatrist to around nine per day by July. But in September, he was reassigned to a compensation and pension evaluation team.

“I was called in by the chief of staff,” Mathews said. “The words he used were, ‘There was a mutiny.’ “

For his concern, Mathews was transferred to another job in an isolated office overseeing pensions. He has filed a whistleblower complaint.

As more and more of these federal whistleblowers come forward, there will be a need to let the VA bureaucracy know that retaliation is not acceptable. Many of the newer VA whistleblowers are going to the press and whistleblower organizations to keep their anonymity because of the retaliation.

The VA scandal, as with most institutional scandals in Washington, will fade from the media when other bright shiny news items come along. There will be a bureaucracy lying in wait to do in the public federal whistleblowers who stay in the system. The federal whistleblower laws are on the books but will be ignored by the VA bureaucracy unless there is a dramatic attitude change. This could be an opportunity for Obama to be tough and set a tone with follow-through that could protect these whistleblowers and get to the bottom of these scandals.

The VA bureaucracy is watching to see what will happen to the public whistleblowers. I have found that about 10 percent of the usual government bureaucrats are opportunistic self dealers – the type of people who would cook appointment books on sick vets to get federal bonuses, or worse. These people watch to see if the overseers in the Executive Branch and the Congress are serious about punishing waste, wrongdoing and fraud. About 10 percent of the bureaucrats are whistleblowers, people who are sticklers for doing the right thing – the boy scouts and girl scouts of the bureaucracy. If the self dealers don’t see much reaction when a often-naïve whistleblower comes through the bureaucratic channels to come forward, they will make sure that the whistleblower is not only fired or warehoused in a non-job, but will do everything to make sure that the whistleblower is deemed paranoid and crazy as a warning to the rest of the bureaucracy.

The bad guys do this not only to protect their jobs and their turf, but to show the 80 percent in the bureaucracy who are fence-sitters, the way the world works in their bureaucracy – if you stick out your head to point out a wrong, it will be blown off to show others. So the fence-sitters are in the VA right now watching to see what happens to the public whistleblowers. They have the examples of Dr. Krugman and Dr. Mathews, and it doesn’t look good.

Obama had put new laws on the books, but unless he makes it clear to the top career people in the bureaucracy that whistleblowers in this terrible scandal will be celebrated and protected with the full force of the office of the president, he is working a losing battle. Even if, for some reason, the bureaucracy is able to claim that the whistleblowers’ allegations are “not substantiated,” he should make sure that it is clear that anyone who retaliates against a whistleblower will be punished to the full extent of the law but, more importantly, will include publish shaming by the White House. If you want the 80 percent in the VA bureaucracy to believe that they can help you fix this agency and get away with it, you have to make sure that the public whistleblowers who have come forward now know that you have their backs. It would be a hard and gutsy thing to do, but in this clear situation where veterans are being denied timely health care, he would be on the side of the angels in the public’s mind, and he might be able to actually permanently reform something.

This is an excellent opportunity for Obama to hit the reset button and protect the type of whistleblowers he has long claimed he will champion. His president-elect transition documents claim that “(s)uch acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled. We need to empower federal employees as watchdogs of wrongdoing and partners in performance.” The fence-sitters are watching to see if he is serious. Will he have the nerve?