SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOCWHISTLEBLOWING AND RETALIATION IN THE DEPARTMENT OF VETERANS AFFAIRS
THURSDAY, MARCH 11, 1999
U.S. House of Representatives,
Subcommittee on Oversight and Investigations,
Committee on Veterans' Affairs,
The subcommittee met, pursuant to notice, at 9:40 a.m., in room 334, Cannon House Office Building, Hon. Terry Everett (chairman of the subcommittee) presiding.
Present: Representatives Everett and Brown.
OPENING STATEMENT OF CHAIRMAN EVERETT
Mr. EVERETT. The hearing will come to order.
Good morning. This Oversight and Investigation Subcommittee meeting is to examine whistleblowing and retaliation of the Department of Veterans' employeesin the departmentby the Department of Veterans Affairs and how they handle that.
This subject has been a matter of bipartisan congressional concern for a long, long time. In 1992, the then chairman John Conyers of the Committee on Government Operations issued a reportthat is Report 1021062with a section entitled ''The DVA, Department of Veterans Affairs, discourages the reporting of poor quality care by harassing whistleblowers or firing them.''
The report went on to say that according to Tom Devine, the director of the Government Accountability Project, the Department of Veterans Affairs is a leader on the merit system anti-honor for one simple reason: free speech repression has been a way of life at this agency.
Page 2 PREV PAGE TOP OF DOC The subcommittee's investigation of the treatment of whistleblowers by the DVA confirms this characterizationhonest employees who have had their jobs eliminated and their lives destroyed because they attempted to expose poor patient care. The Conyers report is no longer readily available, so the subcommittee has made copies and placed them on the table with the witness statements.
The substance of the entire report is depressingly similar to statements we will hear today.
Whistleblowing by its nature usually involves rank and file or middle level employees, those who are least able to protect themselves against retaliation. Whistleblowers who expose fraud, waste and abuse in government and employee rights to make claims are supposed to be legally protected by a number of federal laws, including the Whistleblower Protection Act.
These activities are very much in the public interest and ultimately serve to protect our veterans from indifferent service or poor medical care and waste of money.
Whistleblowing and filing complaints often embarrasses people in authority by revealing their misconduct or mismanagement. Unfortunately, we know that on occasion they retaliate against whistleblowers, even though it is a prohibited personnel practice under federal personnel law and supposedly a serious violation of civil service merit principles.
The subcommittee wants to know what the VA's whistleblowing protections are for its employees and what the level of employee confidence is that they will be protected. This is another hearing about accountability in the VA.
We have had previous hearings about sexual harassment and mismanagement. I can assure everyone that the subcommittee will have more hearings on accountability at the VA during this Congress.
My concerns about the VA culture of tolerating favoritism, cronyism, harassment, and retaliation are a matter of record. The VA has a history of turning a blind eye towards mismanagement and misconduct by senior officials while punishing anyone who dares to speak up. It is a prime example of the good old boy network.
Page 3 PREV PAGE TOP OF DOC Our witnesses will be Special Counsel, Office of Special Counsel; the VA Inspector General; senior VA officials; six current or former VA employees who have asserted the whistleblowing status and alleged retaliation, one from the Philadelphia VA medical center, two from the Alabama VA medical centers and three from the Columbia, Missouri VA medical center. All witnesses will be under oath.
As might have been expected, since this hearing was announced, additional possible whistleblower cases have come to the subcommittee's attention and we will pursue them. In fact, the subcommittee is monitoring two breaking situations even as this hearing begins, one at the La Jolla VA medical center in San Diego, CA and one at the VA outpatient clinic in Chattanooga, TN. Both situations are being reported by the news media. Inspector general teams are actively investigating them right now and the subcommittee will await the reports.
I now recognize Congresswoman Corrine Brown, our subcommittee's ranking Democratic member, and welcome her to that post.
OPENING STATEMENT OF HON. CORRINE BROWN
Ms. BROWN. Thank you, Mr. Chairman. First of all, I would like to submit the Honorable Lane Evans' statement for the committee.
Mr. EVERETT. Without objection.
Ms. BROWN. Thank you.
[The prepared statement Congressman Evans appears on p. 56.]
Ms. BROWN. Thank you, Mr. Chairman, for holding this hearing on whistleblowers.
Page 4 PREV PAGE TOP OF DOC We need to protect employees who uncover threats to the safety of our veterans or crimes or bad management. Good administrators know that it is better to listen to whistleblowers who are mistaken than to silence the ones who are right.
We are here today to examine what progress the VA has made since it came under the law that protects whistleblowers nearly a decade ago.
I am interested in today's testimony. It is important that this hearing stay focused on the issue of whether the whistleblowers have been punished rather than on the substance of what they have revealed. We are limited today to issues of retaliation. It does not matter whether the whistleblowers are right or wrong. They cannot be punished for speaking out.
Congress can measure the effectiveness of whistleblower protection primarily where it fails. That is, VA has no statistics on how often an employee says, ''Boss, we have a problem,'' and the boss calls a meeting and gets the problem resolved.
We have two ways to measure how well whistleblower protection works. One is whatever information we can get from the Office of the Inspector General, the Office of Special Counsel and the Merit Systems Protection Board. The other is to listen to whistleblowers who feel the system has failed them.
VA has some of the finest, most dedicated employees in the world. They must be confident that they can go up the chain and report incidents of mismanagement, fraud or other crimes or breach of patient safety without fear of reprisal.
I am looking forward to hearing some day that VA has awarded a plaque or a promotion to a whistleblower for saving lives or money. Perhaps that has already happened.
Today we will listen to the kind of stories we hate to hear. That is part of why we were elected.
Thank you, Mr. Chairman.
[The prepared statement of Congresswoman Brown appears on p. 52.]
Page 5 PREV PAGE TOP OF DOC
Mr. EVERETT. I would like to congratulate my ranking member on that excellent statement, and we will proceed.
I would like to welcome all the witnesses testifying today. I recognize some of our witnesses are taking time from their daily lives and have had to travel some distance to testify.
I would like to thank all of you in advance for your personal sacrifices. Because of the sensitive nature of today's testimony, I would like to have the witness panels sworn in for their testimony.
I ask each witness to limit their oral testimony to 5 minutes. Your complete written statement will be made a matter of record.
I ask that we hold our questions until the entire panel has testified.
At this time, I would like to welcome and recognize the Honorable Elaine Kaplan, Special Counsel to the Office of Special Counsel.
Mr. EVERETT. We are very much appreciative of your participating in this hearing. Hearing your views on whistleblowing in the Federal Government of is of great interest and concern to the veterans, thousands of VA employees, and the general public and will be most helpful to this subcommittee. We thank you for your testimony now.
TESTIMONY OF ELAINE KAPLAN, SPECIAL COUNSEL, OFFICE OF SPECIAL COUNSEL; ACCOMPANIED BY RUTH ROBINSON ERTEL, ASSOCIATE SPECIAL COUNSEL FOR INVESTIGATION, U.S. OFFICE OF SPECIAL COUNSEL
Ms. KAPLAN. Thank you, Mr. Chairman, and good morning. I appreciate having the opportunity to testify here today. I am going to summarize and amplify my written statement and ask that it be included in full in the hearing record.
Page 6 PREV PAGE TOP OF DOC Mr. EVERETT. Without objection.
Ms. KAPLAN. The Office of Special Counsel is an independent federal agency whose basic mission is to protect federal employees and job applicants from prohibited personnel practices, especially reprisal for whistleblowing.
We receive, investigate, and prosecute complaints of reprisal for whistleblowing before the Merit Systems Protection Board. We have the authority to seek a stay of a personnel action on behalf of an individual who claims reprisal.
We can secure corrective action such as back pay or reinstatement, and we can also seek in appropriate cases an order of discipline against agency officials who commit acts of reprisal.
By design, Congress made our agency a neutral body and, as such, we represent neither the complainants nor the agencies. Our client is the merit system.
I was sworn in as Special Counsel in May of 1998 to serve a 5-year term. One of my primary goals for the office is for federal agencies, employees and managers, to come to understand and appreciate our role as an impartial advocate for the merit system.
I am very anxious to reduce our backlog of cases, to shorten the length of time it takes for us to complete an investigation, and also to increase the aggressiveness of our efforts to prevent retaliation against whistleblowers who we all agree play such a key role in promoting the public good.
Now, to do our job effectively, we obviously need the cooperation of other federal agencies. In principle, clearly, the interests of the Office of Special Counsel and of the employing agencies should be the same. All federal agencies should be interested in correcting and preventing illegal personnel practices.
In practice, of course, this is not always the case. Sometimes we encounter resistance from other federal agencies or, in many other cases, particularly out in the field, simple ignorance about what our work is and our authority.
Page 7 PREV PAGE TOP OF DOC At the present time, we do enjoy excellent relationships with some federal agencies and let me just publicly single out the Department of Defense, the Army and the Navy, as examples of agencies that work closely with us as partners.
Each of these agencies has designated agency liaisons that we contact at the beginning of one of our investigations. They help us coordinate the investigation and they often play an active role in brokering settlements and achieving corrective action on behalf of injured employees.
Over time, we have grown to trust these liaisons because they have proven to us that they share our interest in correcting illegal personnel actions at their agencies.
We are now considering establishing a more formal agency liaison program. We want to create a process where we will train agency liaisons and enter into a formal agreement about our respective roles.
Now, establishing a program like that at decentralized agency like the VA would present a very formidable challenge because in our present day liaison programs, our contacts have influence on field activities and they are very effective in convincing the field offices to take appropriate action.
In order to replicate that at the VA, presumably VA's headquarters would have to take a leading role in working with its field offices and its medical centers.
Mr. Chairman, in 1994, the Congress passed legislation designed to strengthen the Whistleblower Protection Act. The legislation did several things that should be of interest to the committee today.
It expanded whistleblower protection to cover approximately 160,000 new employees, including 80,000 Title 38 VA health professionals. It increased our authority, duties and responsibilities and it also gave all federal agencies the statutory responsibility to advise their employees about their rights under the Whistleblower Protection Act and it directed that the Office of Special Counsel play a consultative role in that process. That is in the law already at 5 U.S.C. 2302(C).
Page 8 PREV PAGE TOP OF DOC It appears that many federal agencies, including the Veterans Administration, have failed to implement this key statutory educational responsibility in a systematic fashion.
Today, when a new employee enters the workforce, they are usually given a packet of material that tells them about government ethics laws, the Family and Medical Leave Act, flexi-time and other employment-related matters, but I have not yet in my experience met a government employee who received a packet of information regarding prohibited personnel practices or their rights under the Whistleblower Protection Act.
We think education is very important and one of my goals is to increase our outreach efforts and to do more to help agencies meet their statutory responsibility to educate their employees.
We are embarking now on what I hope will be a successful partnership with the Customs Service, for example. The Customs Service recently mailed one of our informational brochures to each of its employees with their pay stubs. They have brought us in on plans to conduct training of their employees and we are planning meetings with their legal representatives that we hope will foster further cooperation.
Customs has undertaken these efforts at the direction of the new Customs commissioner, who wants to change the culture of the workforce and ensure full protection for whistleblowers. I applaud his initiative and I hope that it will inspire similar efforts by other agencies.
In closing, now let me offer a few comments as they pertain to the Veterans Administration.
The bulk of the complaints that we receive concerning VA employees involve either medical centers or hospitals. One issue that the committee might want to explore is what sort of training is provided to the VA medical personnel officers and medical center directors concerning prohibited personnel practices and the Whistleblower Protection Act. Are the centers being run by directors with a medical background but no personnel training?
Page 9 PREV PAGE TOP OF DOC These are important questions for the committee, as I am sure you understand, because whistleblower disclosures involving the VA health care system very frequently involve very serious public health issues.
And I notice, Mr. Chairman, that in the VA's response to your letter to the agency it committed to take certain steps to help educate its workforce about whistleblower protection. I want to state for the record here that we would welcome the opportunity to work with the VA in establishing whistleblower awareness and prohibited personnel practice training programs.
We would also welcome its cooperation in establishing a liaison program with the Office of Special Counsel and we also look forward to continuing to work with your committee, Mr. Chairman. And, again, thank you for giving us this opportunity to testify.
[The prepared statement of Ms. Kaplan appears on p. 57.]
Mr. EVERETT. Thank you very much. I note with interest your statement that OSC has jurisdiction over whistleblowing cases involving danger to the public health or safety. I daresay that not many Veterans Administration employees would think of OSC in that context, if they even know who OSC is.
What has been OSC's experience with VA in terms of cooperation in comparison, say, with the Department of Defense and other agencies you cited as examples of agencies that work as partners with you?
Should I infer from your testimony that liaison with the VA could use improvement?
Ms. KAPLAN. I think you could infer that. I mean, we have not really established a successful liaison program and I am not sureyou know, I am new, I just came in in May and it is something that I see as a very important priority.
Page 10 PREV PAGE TOP OF DOC In fairness to the VA, I do not know if OSC has ever really tried or taken the initiative to suggest that such a program be initiated, but I think it would be very useful at the VA, particularly because of the decentralized nature of their organization.
So I think that would be extremely useful and in terms of outreach, I think you are right, many people do not even know what my agency does and one of the things I am trying to do is to change that and we have done a lot at our agency, but we are a small agency, a very small agency, and we really need the help of the employing agencies like the VA to get the word out about what we do.
Mr. EVERETT. One of our witnesses today tells us that his or her case file with OSC got little action in 4 months and that the witness filed a case with the MSPB in hopes of finding a more responsive forum.
What is the OSC caseload and is OSC's staffing of 24 investigators and ten attorneys adequate to handle the caseload?
The person is often in immediate jeopardy of losing their jobs or harmful retaliation and cannot really wait for somebody to get around to their case.
Ms. KAPLAN. I agree with you absolutely. One thing that has been very frustrating to me and I know to many of my predecessors is the length of time that it takes us to get closure in a case, to get to the point where we have decided one way or another whether there is a prohibited personnel practice committed.
We have a small staff. There iswe received, I guess, in fiscal year 1998 about 1,800 complaints and we have a staff ofat that point, I think about 86 people. So you could imagine how difficult it is for us to timely conduct investigations, but we arewe are doing our best and we have tried to come up with some procedures that I hope will improve our track record in that regard.
I am familiar with the case to which you refer and I understand the frustration to a certain extent of that complainant, although to be honest with you, her complaint was filed in June, it was referred for investigation fairly quickly, it was referred for investigation in about 2 months, and the complainant's attorney very shortly thereafterby our standards, anyway, shortlywithin about 2 months thereafter told us that the complainant wanted to pursue an individual right of action, so we stopped processing the case.
Page 11 PREV PAGE TOP OF DOC Now, the statute suggests that we should have at least 240 days to go from start to finish, so that case really did not exceed even our statutory time limit, if you would call it a time limit. But, you know, I am not saying that by way of trying to be defensive because I do understand why complainants do not even want to wait for three or 4 months and that is why they have an individual right of action and it was exercised, I think, in that particular case.
Mr. EVERETT. I can understand that in many cases it has to deal with resources available to you, but there are 200 and how many days?
Ms. KAPLAN. The statute says that we should complete our decision making in 240 days. That is between the complaint and making a determination of whether a prohibited personnel practice has occurred. And, you know, frankly, we do not meet that deadline.
Mr. EVERETT. In other words, you exceed that deadline.
Ms. KAPLAN. Oh, we frequently exceed that deadline.
Now, what I would like to do in cases involving particularlyand what I have been trying to do, in cases involving particularly serious personnel actions is I want to find a way for us to prioritize our cases so that nothing just sits.
So it is something that we are working on and, you know, something that we recognize is a problem and it is frustrating to complainants, frustrating to us and sometimes also frustrating to the agencies themselves.
Mr. EVERETT. But, you know, from the standpoint of the whistleblower, you are talking about 8 months or better, and you cannot even meet that.
Ms. KAPLAN. Well, actually, you know, we canwe dowe do meet it. We do sometimes meet it and we do also have the authority to seek a stay on behalf of a whistleblower and there have been many occasions where we move a case up if someone requests a stay, we look at it more quickly and we make a determination whether we should seek a stay.
We will then go to the agency and say will you stop the personnel action to give us a chance to investigate. That happens with some frequency. Or we can request a stay. So there are mechanisms in place and they are not infallible by any means where we can and we try to move up and get more quickly to more serious cases.
Page 12 PREV PAGE TOP OF DOC You know, I could not possibly sit here and tell you that it is acceptable, because it is not, and I was one of the agency's critics before I got there and now I see myself sitting on the hot seat. But we are doing our best.
Mr. EVERETT. I will not go into it any deeper. My concern is if you have enough resources, I mean, still for that employee that is out there hanging in the wind, frankly.
Let me do one more quick question and I think we will have two rounds, if that is agreeable with everybody.
I understand a recent federal court interpretation has effectively narrowed OSC's jurisdiction, resulting in the closing of a number of cases. Please comment on this and how could whistleblower protections be improved.
Was it the Department of Justice that argued to narrow protection for whistleblowers?
Ms. KAPLAN. Well, I think what you are referring to actually is a case involving ironically the VA IG's office, which was a disciplinary action case that the Office of Special Counsel brought against a manager in the VA IG's office for retaliating against one of his subordinate employees and we were successful in that case in obtainingI think it was a 30-day suspension of the manager involved and the manager appealed the case himself. He was not represented by the Department of Justice.
Ironically, we were represented by the Department of Justice in that case and we argued in that case and we were represented by the Department of Justice, arguing that while we had won that particular case, that the standard of proof that the MSPB had established for disciplinary actions was too stringent.
Mr. EVERETT. We have two federal court decisions and we were not asking about the IG case.
Page 13 PREV PAGE TOP OF DOC Ms. KAPLAN. I see.
Mr. EVERETT. We were asking about the other one.
Ms. KAPLAN. Okay. Then you are referring then to the Willis case, I believe?
Mr. EVERETT. Right.
Ms. KAPLAN. And the Horton case. I am sorry. I misunderstood. Yes, the agencies were represented by the Department of Justice in that case and successfully argued what I think are probably unreasonable propositions but nonetheless are now the law and those are that if you make a disclosure in the line of duty that it is not protected by the Whistleblower Protection Act.
So, for example, if someone who was a Nuclear Regulatory Commission inspector inspected a nuclear power plant and reported to their superior that there were safety violations, their superior could fire them and they would not be protected by the Whistleblower Protection Act. That was a decision of the Court of Appeals for the Federal Circuit.
Yes, I do believe it was probably urged upon them by lawyers from the Department of Justice representing the agency.
There was also another case which held that when you make a disclosure to the wrongdoer themselves, then that is not protected by Whistleblower Protection Act. We think that both of those decisions are incorrect.
Mr. EVERETT. Thank you. I would like to recognize my ranking member now.
Ms. BROWN. Thank you, Mr. Chairman.
Good morning. The most important question to me for evaluating how well VA is protecting whistleblowers is this: what figure can you give me on the proportion of complaints filed against the VA that your office has found factual?
Page 14 PREV PAGE TOP OF DOC Ms. KAPLAN. That we have found substantiation for?
Ms. BROWN. Yes.
Ms. KAPLAN. You know, we do not really necessarily keep our statistics in that way. I can tell you how many cases have been filed against the VA involving whistleblower retaliation and how many of them were investigated or sent for a full investigation.
I cannot tell you necessarily how many resulted in success for the complainant because many of these cases become individual right of action and we stop keeping track.
But for example, the statistics show in fiscal year 1996 we received 86 whistleblower retaliation complaints against the VA; 22 of them, that is one-quarter, were investigated. In 1997, we received 86 complaints of whistleblower retaliation and in 1998 we received 71 complaints of whistleblower retaliation.
In 1998, actually a little bit more than 25 percent of the cases were referred for a full investigation, which indicates that a prima facie case had been made.
Ms. BROWN. And how does this compare with other agencies?
Ms. KAPLAN. You know, I knew someone was going to ask me that and so we spent some time seeing if we could work with our numbers to figure that out and it is very difficult. I cannot give you a reliable figure, and I do not want to be evasive, but it requires comparing really the number of complaints to the population of employees on board at a particular time and I am not even sure if that is completely fair, either, because we have to look at the number of people who are covered by our act. So, you know, I could not give you anything reliable in terms of a comparison.
Ms. BROWN. Well, you mentioned the Department of Defense that you felt worked very closely with you. Can you just give me those statistics?
Ms. KAPLAN. I want to see if I have the Department of Defense. I actually do not think I do, but I could supply them to you after the hearing. And let me say that it is not necessarily just that we will receive fewer or more complaints, it is also how the complaints are dealt with by the agency when we receive them.
Page 15 PREV PAGE TOP OF DOC The good experiences that we have had with the Department of Defense and the Department of the Army is that we feel that they are very cooperative with us and that, you know, no matter how many complaints we receive, I do not know if you would compare the number of the complaints or the reaction of the agency, that they are cooperative and they help us and that is what we are looking for.
Ms. BROWN. And are you saying that the rest of the agencies or perhaps VA are not as forthcoming?
Ms. KAPLAN. Well, the Defense Department and the Navy and the Army are the best, according to my staff. And there are other agencies that we do not have a good formal relationship with, including, among others, the VA. The VA is not the only one.
And that we have more difficulty because, as I mentioned when I started, frequently the VAyou know, a lot of the complaints arise at the hospitals and the medical centers and they are in small towns and locations and most of these folks do not even know who we are and we call them on the phone and they are resistant. And there is not a lot of coordination. We do not have somebody at headquarters who we can always call, who is working that.
I think the problem can be solved.
Ms. BROWN. Thank you.
And thank you, Mr. Chairman.
Mr. EVERETT. Let me say I appreciate the gentlewoman's line of questioning because the reason it concerns this subcommittee, while I know you do not have jurisdiction over EEO cases, the VA has either the highest or one of the highest instances of sexual or racial harassment in the Federal Government and it is easy for me to wonder if that transfers over to whistleblowing also, if they have one of the highestbut I don't know if it would be possible for you to keep those kind of figures, but it would certainly be interesting.
Ms. KAPLAN. I agree with you. I wanted to work with manipulating our system and our database, and we are adjusting it for the year 2000 and so forth, to try to keep more reliable and more useful statistics, because I think it would be very informative to Congress, not just about the VA, but about other agencies as well, so I think that is a very good suggestion.
Page 16 PREV PAGE TOP OF DOC Mr. EVERETT. Thank you. And let me point out that we will have additional questions for the record and would ask you to submit answers to those questions within 30 days.
Ms. KAPLAN. I would be happy to answer them. Thank you.
Mr. EVERETT. Thank you for attending.
I would like to recognize and welcome the Honorable Richard Griffin, Inspector General of the Department of Veterans Affairs, and ask him to introduce who he has with him.
Mr. GRIFFIN. Mr. Chairman, Mr. Jon Wooditch is with me. He is the Assistant Inspector General for Management and Administration.
Mr. EVERETT. Thank you.
Mr. EVERETT. Mr. Griffin, if you will proceed with your statement?
TESTIMONY OF RICHARD J. GRIFFIN, INSPECTOR GENERAL, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY JON WOODITCH, ASSISTANT INSPECTOR GENERAL FOR MANAGEMENT, DEPARTMENT OF VETERANS AFFAIRS
Mr. GRIFFIN. I want to thank you, Chairman Everett, and the members of this subcommittee for the opportunity to testify on the policies and protections of the Office of Inspector General for employees who engage in whistleblowing activities, as well as for other employees who may be subject to retaliation for filing various types of claims or complaints against the VA.
Since October 1, 1996, the OIG has opened 20 reprisal cases. Of these 20, three were substantiated, six were unfounded, and four remain under review. Of the remaining seven, one sought remedy through the federal courts, one settled with VA management, and five went to the Office of Special Counsel.
Page 17 PREV PAGE TOP OF DOC Due to resource constraints, the OIG generally has had to limit its investigations to employees who believe they have been retaliated against because they filed a complaint with or provided information to the OIG or to those cases involving senior VA managers.
Whether we accept a case for investigation or not, it is OIG policy to advise all employees of their right to file a complaint with other administrative entities such as OSC, the VA Office of Resolution Management, and the Merit Systems Protection Board.
In cases where our investigation substantiates allegations of retaliation for whistleblowing, we recommend that management take appropriate disciplinary action against the wrongdoer and corrective action to make the employee whole. With our recommendations, we provide VA management with the evidence that supports our findings.
In those cases where VA management takes administrative action, we consider the case closed. This is in accordance with the standard practice in the inspector general community. The decision to take administrative action and the specific action that is appropriate is vested in the management officials who supervise the employee in question.
Because inspectors general are independent of management, they do not recommend specific penalties or disciplinary actions.
The OIG's function of objective oversight makes it especially important that the line between management responsibility and IG oversight responsibility be respected and maintained.
We are aware that some VA employees are reluctant to raise allegations of wrongdoing or cooperate with the IG because they fear reprisal. Fear of reprisal is a natural reaction and will always exist to some degree. However, in my view, fear of retaliation, which has the potential to deter complainants from coming forward with allegations of wrongdoing, is an issue that needs to be continually addressed within VA through timely and credible reviews by the inspector general's office, followed by appropriate administrative actions by the department's managers.
Page 18 PREV PAGE TOP OF DOC Section 7 of the IG act requires the IG to maintain the confidentiality of employees who file a complaint or otherwise provide information to the IG. This section provides that the identity of the employee cannot be released except if the inspector general deems it absolutely necessary to conduct the investigation.
It is our policy to consider all VA employees who contact us with a complaint as a confidential source unless the employee advises us that he or she does not expect or want to remain confidential.
However, there are occasions where employees would like to remain confidential but the very nature of the complaint makes it impossible to conduct an investigation without explicitly or implicitly identifying the complainant.
For example, an employee may file a complaint containing allegations of mismanagement that the employee previously brought to the attention of VA management. The mere fact that we are investigating the same allegation could lead management to suspect that employee. Another example involves allegations of retaliation which by their very nature cannot be investigated without revealing the name of the employee.
In such situations as these, it is OIG policy and practice to advise the employee that we cannot guarantee confidentiality if we conduct an investigation and we then allow the employee to decide whether he or she wants us to conduct an investigation or close the case.
In closing, I want to thank the committee for its support, particularly in the fiscal year 1999 budget. The additional resources you have provided will be extremely helpful in improving our ability to issue timely and thorough reports. If these actions are combined with the commitment by the department to have prompt, appropriate administrative actions, we can improve the quality of the workplace for all VA employees and as a result improve the quality of service to our veterans.
That concludes my statement. I will be happy to respond to any questions you may have at this time.
Page 19 PREV PAGE TOP OF DOC [The prepared statement of Mr. Griffin appears on p. 61.]
Mr. EVERETT. Mr. Griffin, thank you very much.
Similar to my concerns about the Special Counsel's office, it appears to me that the IG office just does not have enough troops to get the job done adequately in handling whistleblowing cases, no matter how strong the commitment to do a good job and no matter how hard you try.
Most VA whistleblower cases come in over the hot lineis that not correct?
Mr. GRIFFIN. That is correct.
Mr. EVERETT. How many each year? How many come over the hot line each year?
Ms. GRIFFIN. We receive roughly 20,000 contacts a year on our hot line. I would not categorize all of those as purely whistleblower type of calls.
Mr. EVERETT. How many employees man the hot line and investigate these cases?
Ms. GRIFFIN. Well, there is an intake unit that staffs the hot line. After they receive a case, if it is a health care related issue that requires the expertise of our health care inspection group, it would be assigned to them; if it is an investigative case that is either criminal or administrative in nature, it would go to a different group of investigative personnel.
Mr. EVERETT. How many cases are referred percentagewise back to the VA for investigation?
Mr. GRIFFIN. In the past year we opened roughly 725 cases and we referred out roughly 85 percent of the total.
Page 20 PREV PAGE TOP OF DOC Mr. EVERETT. How long does it take you to respond to hot line cases?
Mr. GRIFFIN. Well, some can be responded to very quickly and others which seem to growthe more you dig, the more you findcan take a number of months.
Mr. EVERETT. An average time would not be appropriate to try to figure?
Mr. GRIFFIN. It is driven by the breadth of the complaint.
Mr. EVERETT. How many allegations of criminal conduct are the OIG unable to investigate each year?
Mr. GRIFFIN. In the past fiscal year, there were several hundred criminal referrals that our criminal investigators could not get to.
Mr. EVERETT. Will those be stacked up and eventually gotten to, or what would be the procedure?
Mr. GRIFFIN. We would try to refer those, if we can, to another law enforcement authority. Some of them will be logged in to our information system and if they connect with something that we are doing subsequently, they could be looked at in conjunction with another initiative.
Mr. EVERETT. I have gone through that line of questions to point out one thing. I think you personally know that I have been personally involved in making sure that your office is beefed up staffwise, but it also isI realize that these cases can occur in any organization, but what concern is it to you that there is a whistleblower case involving your own office?
Mr. GRIFFIN. Well, if it is the case that was referred to by the Special Counsel
Page 21 PREV PAGE TOP OF DOC Mr. EVERETT. Right.
Mr. GRIFFIN. That is a case which dates to 1991, and a case in which, as is the case with all of these hot line-type cases, there was an allegation made and it is being adjudicated in the proper channels. It has been going on for several years and I believe at this point in time, it is in the federal appellate court. It has been going on a long time.
If the question is, am I in favor of retaliating against IG employees? The answer is no. Would I tolerate that? The answer is no.
I have established communications mechanisms in the time that I have been there to ensure that I have open communications with all levels of employees in the IG organization and there will be no problems during my time at the VA IG office.
Mr. EVERETT. The reason I asked that line of questioning is because of the fact that I would hope and I know that you will make sure that this happens, that all employees of the IG's office recognize that among all places that they must not engage in this sort of activity towards employees.
Mr. GRIFFIN. Absolutely.
Mr. EVERETT. I think it is also important to understand that the IG office does not impose discipline on alleged wrongdoers.
What happens if the IG and the VA do not see eye-to-eye on an IG finding of whistleblowing and retaliation?
Mr. GRIFFIN. Well, over the course of the last couple of years, there have been some trip wires put in place in the department to ensure that when there is a disagreement between our conclusions and the conclusions of the officials in the department who have ownership of the employee that there is a formal resolution process in place wherein we would elevate the matter to the deputy secretary level for the deputy secretary's ruling.
That is something that has not happened too frequently, at least in the 17 months that I have been the IG, but it has happened during my time and it is something that is available to us and we will use as we see fit.
Page 22 PREV PAGE TOP OF DOC Mr. EVERETT. I appreciate your answer. It does concern me from time to time, the appearance of the VA being reluctant to pursue some of these cases.
Ms. BROWN. Thank you, Mr. Chairman.
I have one question and I think you brought it up, that a lot of the employees do not have a lot of confidence in the IG's office. Can you tell me
Mr. GRIFFIN. Did I say that?
Ms. BROWN. Well, maybeI thought you alluded to it. Anyway
Mr. EVERETT. Will the gentlewoman yield?
I can assure you that we get calls on a daily basis that plead with uson a daily basisnot to reveal their names because they fear retaliation and the inability to protect them.
Mr. GRIFFIN. Sure.
Ms. BROWN. So I would like to know how you have approached this problem and what are you doing to address it and what kind of training or outreach programs do you have?
Mr. GRIFFIN. Again, the problem being people's fear of reprisal when they blow the whistle?
Ms. BROWN. Yes, sir.
Mr. GRIFFIN. I think that all you can do is demonstrate in your actions that you do not compromise people who come to you.
I do not think there will ever be total comfort, whether it is an employee or even people outside of the department who call our hot line. It is human nature that people do not want to be identified as the person who made that contact. It is our policy not to reveal those identities and the only way that we can reinforce that is in practice.
Page 23 PREV PAGE TOP OF DOC I think part of the problem is that some of these things get so complicated and the time period gets stretched out before any action is taken, if it is appropriate. You have to keep in mind that the majority of the allegations we get are unsubstantiated.
Ms. BROWN. Okay.
Mr. GRIFFIN. And when someone has made a complaint and then months pass and they have not seen any sign of any action being taken toward the person who they feel did wrong, there's a sense of frustration in that they have wasted their time.
Unfortunately, it takes time to properly investigate allegations. And if you are going to bring charges against someone, you need to be certain that you are on solid ground before you bring those charges.
Ms. BROWN. Thank you, sir. What percentage of complaints do you get that you find factual?
Mr. GRIFFIN. I would say in general for our total hot line caseload approximately 25 percent are substantiated; 75 percent are not substantiated.
Ms. BROWN. Thank you.
And thank you, Mr. Chairman.
Mr. EVERETT. I want to thank the panel, and we will now recognize the next panel.
Thank you very much for your appearance.
Mr. GRIFFIN. Thank you very much, Mr. Chairman.
Mr. EVERETT. I would now like to recognize Dr. Christensen, Dr. Adelstein, Dr. Dick from the Henry S. Truman Veterans Medical Center in Columbia, MO; Mr. Bumgardner and Mr. Wilson from Central Alabama Veterans Health Care System; and Ms. Pastor, a former member of the Philadelphia VA Medical Center.
Page 24 PREV PAGE TOP OF DOC Would you all please stand?
Mr. EVERETT. Before we get started, I might point out that there will be a series of votes, I do not how this may be coming up, in which case we will recess and we will try to get in at least oneI think, Mr. Bumgardner, we will start with you, we will get in as much testimony as we can before the 10-minute bell, at which time we will recess.
Mr. Bumgardner, if you will, please?
TESTIMONIES OF DONALD R. BUMGARDNER, CENTRAL ALABAMA VETERANS HEALTH CARE SYSTEM; KENNETH WILSON, EMPLOYEE, VA MEDICAL CENTER, TUSCALOOSA, AL; JOAN PASTOR, FORMER EMPLOYEE OF PHILADELPHIA VA MEDICAL CENTER; EARL DICK, EDWARD H. ADELSTEIN, AND GORDON D. CHRISTENSEN, HARRY S. TRUMAN VETERANS MEDICAL CENTER, COLUMBIA, MO
TESTIMONY OF DONALD R. BUMGARDNER
Mr. BUMGARDNER. Mr. Chairman, committee members, fellow veterans, and guests, I have been identified as a whistleblower.
I met with Congressman Everett and his district director, Mr. Steve Pelham, in May of 1997. I discussed what I perceived as mismanagement at Central Alabama Veterans Health Care System. Over the next 2 weeks I supplied evidence of
Mr. EVERETT. Mr. Bumgardner, excuse me, but would you pull that mike up just a little bit, please, sir?
Mr. BUMGARDNER. Over the next 2 weeks I supplied evidence of excessive overtime, sick leave abuse and a master space plan detailing $8 million in renovations, $7.6 million to be done at the Tuskegee campus. Some of these were discussed when the integration was halted on June 10, 1997.
Page 25 PREV PAGE TOP OF DOC I continued to meet and supply information to Mr. Pelham, the VA inspector general's office and the Federal Bureau of Investigation. I began to be treated differently by higher management. I will only highlight some of the actions that were taken against me.
Mr. Clay, the former director, made references on a local Tuskegee TV station program about a white male who had made allegations against him. The description left no doubt in my mind or anyone else's that he was referring to me.
Secondly, I had my compressed tour abolished.
Third, when I had to go on medical leave for back surgery, the responsibilities for fiscal service operations for both campuses were transferred to the chief of fiscal service at Tuskegee. The memorandum was never rescinded and when I returned from sick leave, my former authority was never returned.
I gave advice to Mr. John Hawkins, former associate director, concerning applicable rules about having a picnic in lieu of an awards program. When information about the cost of the picnic was leaked, it was canceled. I understand I was one of the people blamed for its cancellation.
I applied for but was not selected for the position of financial manager at CAVHCS. A candidate with less experience but who had previously worked with Mr. Hawkins was selected.
In a December 8, 1997 meeting with Mr. Hawkins, I was given a memorandum reassigning me to the Tuskegee campus as a staff assistant/accountant. When asked for an explanation for the reassignment and relocation, Mr. Hawkins refused to answer me. Mr. Hawkins, standing over me with fists balled, asked whether I would leave or would have to be made to leave. I told Mr. Hawkins I would leave.
On December 9, 1997, all my computer access, with the exception of local e-mail and leave requests, was pulled. The same day, I was informed the door had been removed to the office I was to occupy at Tuskegee.
Page 26 PREV PAGE TOP OF DOC Management later reversed personnel actions on my former staff when they could not retaliate against me.
Mr. Larry Deal, VISN 7 director, in a July 28, 1997 statement before this committee, stressed that the integration ''will improve the quality, access and cost- effectiveness of health care for veterans.'' He also stated, ''We believe that the integration will help eliminate unnecessary administrative and leadership positions at both facilities, thereby freeing up more resources for direct patient care.''
He then allowed Mr. Hawkins to recruit and hire six administrative service managers, many from his previous medical center. CAVHCS had expenditures of over three-quarters of a million dollars in salary and relocation expenses.
This was not cost-effective, but it did eliminate Montgomery and Tuskegee service chiefs from leadership positions. Since management could not identify who was or who was not a whistleblower, they elected to replace all of us.
The integration was designed to save precious medical care funds, to expand programs for the veterans we are responsible for serving. As a financial manager, I was a steward of the budget. I was charged with ensuring that the waste, fraud, and abuse statutes were carried out.
I first discussed the overtime usage at Tuskegee with Mr. Clay in January of 1997. Nothing was ever done to decrease its usage. I tried for 5 months to work for change within the organization.
The way the organization was going ahead without any regard for obeying rules and regulations made my decision much easier. I feel I did what was right. I have no regrets.
The Office of Inspector General report on management, clinical and administrative issues at CAVHCS states on page 59, ''Based on our analysis of the facts, we concluded that Donald R. Bumgardner's non-selection and permanent change of duties was in retaliation for making protected disclosures and filing an EEO complaint, which are prohibited personnel practices.''
Page 27 PREV PAGE TOP OF DOC I am currently awaiting the resolution of both an EEO and Office of Special Counsel investigation. Without some resolution to either one of these situations, I am not sure what my future holds.
Congressman Everett, I would like to thank you for my invitation to appear here today. You were the only hope many of us had to fight the retaliation and reprisals brought against us. Please understand this thank you comes from many voices that could not be here today.
That concludes my statement.
[The prepared statement of Mr. Bumgardner appears on p. 66.]
Mr. EVERETT. Than you very much, Mr. Bumgardner.
I want to apologize to the panel now, but we do have a vote and it is one of those necessary evils we have up here and I will recess the hearing and we will be back shortly. Thank you.
Mr. EVERETT. I again apologize. We can get in about 20 minutes, hopefully, before our nextthere will be a series of votes after that, which would delay us probably another half-hour.
I would also point out that please do not be alarmed by the absence of members on the panel. This particular committee is made up of, for instance, on this side Mr. Floyd Spence, who is chairman of the House Armed Services; Mr. Stump, who is chairman of a full VA committee; Mr. Buyer, who is chairman of the personnel subcommittee on House Armed Services; and Mr. Lane Evans, who normally attends, is the ranking member on the full VA committee and was a former chairman of this committee; and then Ms. Brown is an important member of the Transportation Committee and they are currently having a vote and markup right now. So it is just the nature of how we have to do things here, but I can assure you that each of these members recognizes the importance of these hearings and your statements.
Page 28 PREV PAGE TOP OF DOC Mr. Wilson, we will ask you to continue now.
TESTIMONY OF KENNETH WILSON
Mr. WILSON. Mr. Chairman, members of the committee, my name is Ken Wilson. I am presently employed at the VA Medical Center in Tuscaloosa, AL. My federal service consists of 3 years
Mr. EVERETT. Mr. Wilson, I am sorry. I am going to ask you also to pull that mike up as close as you can get it, please, sir.
Mr. WILSON. My federal service consists of 3 years in the United States Navy and 27 years with the Veterans Administration. I have served in seven VA medical centers and had obtained the title of Chief, Acquisition and Materiels Management Service.
My reason for being here today is to provide a brief synopsis of the events that led to my being eliminated from my career field and being placed in the status of not having a position description nor a defined job assignment.
The VA Medical Center in Montgomery, AL became my duty station in July of 1988. My position as Chief, Acquisition and Materiels Management Service required me to be an integral part of the day-to-day administrative effort to strive to ensure the best possible care for the nation's veterans through support to the clinical care providers at the Montgomery VA.
In this effort, I received numerous outstanding performance awards for my efforts. In 1996, it was determined that the VA Medical Center in Montgomery, AL and the VA Medical Center in Tuskegee, AL would be consolidated into the Central Alabama Veterans Health Care System.
In late December 1996, my counterpart at Tuskegee left federal service and I was asked to manage both medical centers' logistics operations. In March of 1997, the acting director of the combined centers presented me with an outstanding performance award.
Page 29 PREV PAGE TOP OF DOC In the fall of 1997, the position I occupied was advertised nationally and I in effect applied for my own job. This process also took place for other service chiefs serving at both VAMCs. I was advised by the associate director that I was not selected for the position.
My question to him was what qualifications did I not possess to be selected or what leadership skills did I not have to be selected. I got no answer except to say that I was fully qualified and he wanted his own man in the job.
I asked what my new job would be, but was not given an answer. I received a memorandum informing me that I would be an administrative assistant to the new chief. In January 1998, I chose to transfer to another VA to remove myself from this situation.
My failure to be selected was and still is the result of my being part of a group of employees who cooperated with the VA IG investigation into the integration and my association with Congressman Everett's Office in the review of this integration process. My non-selection also stems from my not cooperating in the expenditure of funds for a function that violated regulations.
Before my removal as service chief, I was instructed to write a purchase order for a picnic for employees of the combined VA medical centers in Montgomery and Tuskegee. The cost of this picnic would have totaled just under $25,000 for food and entertainment. I informed the associate director that this transaction was illegal and could not be accomplished within the regulations.
I was given a copy of an agreement signed by the associate director that detailed what was to be provided by the vendor and repeatedly told to write this purchase order.
My refusal to act on this matter led to my conferring with the Network Acquisition Office for advice and guidance. The picnic was canceled the day before it was scheduled. This situation lead to my being labeled as not a team player and being against the integration process.
Page 30 PREV PAGE TOP OF DOC After this incident and numerous others mentioned in the VA IG report took place, a group of employees chose to contact Congressman Everett's office for assistance. To this day, if it had not been for the intervention by Congressman Everett, this situation would have continued to deteriorate and brought down the level of patient care to an unacceptable level.
To this day, the situation at Central Alabama Veterans Health Care System remains unsettled and in turmoil. No end is in sight.
Without reliving all the details of the integration of VA Montgomery and Tuskegee, please allow me to say that there is no provision in the VA system to protect those employees who cooperate with the VA Inspection General. There is no mechanism to stop the injustice to employees who attempt to prevent the gross mismanagement of VA activities. Attempts to make higher level officials aware of the activities fall on deaf ears.
Some Central Alabama Health Care employees chose to resign and find other jobs, some chose to take the early out and reduce their retirement benefits. Others chose to give up their homes, their VA families and seek other VA positions. Some chose to stay and be subjected to a multitude of harassing and embarrassing situations.
Some chose to pursue the EEO system for resolution, some who could afford it chose to hire legal counsel to seek relief. Some chose to walk away and give it up. And some of us still hold out with the faith that our VA system will correct these wrongdoings and compensate those affected by these actions.
To date, the system has managed to lose quite a few dedicated and loyal employees who cannot be replaced easily. The system has completely shattered the pride of many employees that have spent their adult lives in the VA system. The system has not only failed those employees, it has also failed the veterans these employees have served long and faithfully for.
In closing, I would hope that through these hearings that some mechanism will be developed to ensure that the employees of this agency have some avenue of protection and that policies are defined and carried out equally and fairly.
Page 31 PREV PAGE TOP OF DOC My thanks to the Committee for the opportunity to speak and to Congressman Everett for his role in this situation.
I was asked if I had any reservations about testifying before this committee, my reply was ''Gone is my career field, gone is my job, my VA family, my home, and my faith in a system that I have spent 27 years in; what else can I lose?''
Thank you, sir.
[The prepared statement of Mr. Wilson appears on p. 71.]
Mr. EVERETT. Thank you, Mr. Wilson.
TESTIMONY OF JOAN PASTOR
Ms. PASTOR. Good Morning, Mr. Chairman, members of this committee. I feel honored that you asked me to be here today. I just wish that my invitation were under different circumstances.
I was asked here today to tell you about the retaliation that I experienced after reporting a number of ways my supervisor, W. Bruce Dunkman, M.D., at the Philadelphia VA Medical Center violated federal laws, rules, and regulations and actions that posed a substantial threat to the health and safety of the hospital patients.
I was a research nurse at the Philadelphia VAMC in the Special Cardiology Clinic, working on NIH and pharmaceutical company-sponsored clinical research studies from August of 1995 to May of 1998.
During my tenure, I was harassed, intimidated, slandered, excluded from my job, and ultimately dismissed from my position for trying to help and protect the patients in the clinic.
Page 32 PREV PAGE TOP OF DOC The retaliation began in August 1996, after a male pulmonary function technician sexually attacked me. My supervisor, Dr. Dunkman, blamed me for the assailant's actions. I informed my supervisor how I felt physically threatened, but he did nothing.
My supervisor never told me about the EEO process, nor did he report this incident to the EEO office or to other management officials. My supervisor exclaimed that the assailant was a tech that he did not want to lose.
For 6 months, I endured my supervisor's repeated threats of possibly bringing the man that attacked me into my office area. Finally, after my supervisor pounded his fist on the desk and demanded that I leave my office area so the assailant could come over to my area and take over one of my job responsibilities, I went to HR, human resources.
I went to human resources to inquire about other positions within the hospital. The acting HR director asked me why I was exploring new opportunities. I made several disclosures to the acting HR director that included Dr. Dunkman's improper handling of the sexual assault, his practice of repackaging and redistributing drugs from one patient to another and my inappropriate exposure to radiation within the clinical research studies.
The acting human resource director requested that I write a statement summarizing our discussion. I did so in an effort to protect not only myself, but also the patients.
After I delivered my report to HR, the medication redistribution stash was removed from the clinic by a health care team. Dr. Dunkman had been redistributing medications from one patient to another for years.
The medications being distributed in the clinic had already been dispensed to other patients and handled and some were obviously dirty and were expired and were not to be consumed, but Dr. Dunkman distributed the medications to patients anyway. Dr. Dunkman never kept records of the medications he distributed in his redistribution scheme or to whom they were distributed.
Page 33 PREV PAGE TOP OF DOC At this point, the acting HR director told me that my safety was in jeopardy at the Philadelphia VA and that I should not return to work.
Upon my return to work, I was given an office in the basement without anything to do. I objected to this and decided to return to my previous position, even though no safety measures were afforded me.
When I returned to my office, Dr. Dunkman repeatedly yelled at me to get another job. He ignored me when I asked him questions, told me he was too busy to give me answers to important patient report issues, excluded me from the clinic meetings, and tried to deny paying for graduate school, a benefit agreed upon during my hiring at the Philadelphia VA.
In April of 1997, Ms. Ann Lovell, the radiation safety officer, called me to discuss and determine the degree of my radiation exposure during one of the clinical research studies. Since the RSO was not aware of the research I was doing, we reviewed the informed consents and protocols.
Ms. Lovell and I discovered that the research had not been approved by the radiation safety committee and the biohazard committee.
Mr. EVERETT. Ms. Pastor, I am sorry. I regret that I am going to interrupt you. We will hear the rest of your testimony, but unfortunately I have about 4 minutes to get to the floor.
There will be a series of votes, so we can expect at least a 20-minute delay.
Thank you very much. We are recessed.
Mr. EVERETT. The committee will come to order.
Ms. Pastor, I again apologize. This is kind of the world we live in up here, but I would like for all of you to know that both staff and the members have already read your statements and this is just a matter of record. So if you will proceed.
Page 34 PREV PAGE TOP OF DOC Ms. PASTOR. All right.
This was a regulation of the radiation license granted by the NRC and the PVAMC regulation. Since the radiation experts within the hospital had never calculated the dosage of radiation received by the patients in the study, the informed consents either neglected to state or underestimated the amount of radiation that the research patient would receive during the protocols.
After these issues were further investigated, one of the ongoing studies required all 90 hospitals, 30 VA hospitals and 60 non-VA hospitals, conducting that research to change their informed consent to reflect a more accurate calculation of the radiation exposure of the research patients.
In May of 1997, my co-worker and supervisor filed criminal charges against me, charging me with taking patient files, because they could not be located. I was on vacation the day the charges were filed, but was available by phone. When I returned to work the next day, Dr. Dunkman stated that he had filed criminal charges against me for taking missing patient files. I showed Dr. Dunkman that the files were beside the other research files, where they had been for months.
This was only the beginning of Dr. Dunkman's slander campaign. I heard Dr. Dunkman tell a management official that I was psychotic and a co-worker reported that Dr. Dunkman told them that I was crazy.
Dr. Dunkman and my co-worker worked in synergy telling other employees and patients that I was not doing my job and that I was trying to close the clinic.
I was very upset that Dr. Dunkman tried to slander me to cover up his wrongdoing. I only reported his action because the patients' health and safety was at stake.
I went to the PVAMC's medical ethicist to discuss the ethical issues pertaining to the misleading and inaccurate statements contained in the informed consent for the research studies. Although she was outraged that the informed consents were inaccurate and the necessary approvals for the research were not obtained, she said that she could not say anything because she feared losing her job.
Page 35 PREV PAGE TOP OF DOC In May of 1997, the FDA audited the special cardiology clinical research site. Dr. Dunkman demanded that I only answer yes or no to the FDA investigator's questions.
I continued doing my work during the audit and placed a revised informed consent for one of the research studies in the regulatory binder during the audit, as required by the study's CRAs.
Dr. Dunkman became very upset with me because he thought that the FDA inspector might have noticed the changes in the informed consent regarding radiation and that it had been improperly approved by expedited review.
The investigator also questioned me about the delinquent and absent reporting of patient deaths and serious adverse events in the research study. I fully cooperated with the FDA investigator and showed him how many of the reports had not been filed.
The NRC investigated. The NRC auditor asked me questions about the unapproved clinical research being conducted in the clinic. Although the NRC auditor knew that the violations of conducting clinical research without radiation safety and biohazard committee review and approval was contrary to the NRC license, she warned me that my reporting of these violations would ruin my career, and then referred to the problems that the RSO, Radiation Safety Officer, Ann Lovell, was experiencing for her similar reportings.
In a follow-up letter to me, the NRC stated that clinical research did not fall entirely under their jurisdiction and therefore the FDA would be consulted on some of the issues I had raised. The investigations by both agencies, the FDA and the NRC, are still open on these issues today.
At this time, management knew of my disclosures to the NRC and FDA. Dr. Dunkman, in June of 1997, repeatedly consulted the hospital administrators, director, and human resource personnel to find a way to terminate me. Dr. Dunkman then wrote a memo to Ms. O'Shea, associate hospital director, indicating his wish to eliminate me due to my whistleblowing.
Page 36 PREV PAGE TOP OF DOC In September of 1997, I was again exposed to radiation without my consent or knowledge. My co-worker left a radioactive blood sample in my office area at the desk where I often sat. This sample not only contained radiation, but was also hazardous waste. Dr. Dunkman did not chastise, discipline, or retrain my co-worker for this dangerous act.
Also in September of 1997, the radiation safety committee met. At the meeting, the chief of radiology yelled at me in front of my peers and management officials to get another job.
Subsequent to the meeting, Dr. Dunkman admitted that he had asked the Chief of Radiology to tell me to get another job. He also asked an outside employee who visited the clinic, a clinical research associate, to tell me to get another job. She told me this in a derisive manner.
Dr. Dunkman again resorted to intimidating me and screamed at me, saying I was only at the Philadelphia VA to collect a paycheck and that I did not want to work. Yet he had been pleased with my performance prior to my making protected disclosures.
To assure that I was adequately performing my duties, I had repeatedly asked for performance appraisals, but I never received one, despite the fact that my co-worker did receive one. Dr. Dunkman explained in a deposition that he did actually prepare one in April, 1997, but that since he could not bear to talk to me to review it, he gave it to the associate director of research to go over it with me, which he did not. Dr. Dunkman never checked to see if I had received it, which I had not. I also requested a job description from Dr. Dunkman, but one was never presented.
Finally, after Dr. Dunkman had had many discussions with Philadelphia VA management about the easiest way to terminate me, the then acting HR director suggested a plan to eliminate my position by depleting the funds in my supervisor's accounts. Dr. Dunkman then carried out this plan. He requested one of his studies to terminate him as the principal investigator study clinical site. The initial letter from the study, that was amended at Dr. Dunkman's request, indicated this action was being taken due to the ongoing investigations instigated by the research nurse, me.
Page 37 PREV PAGE TOP OF DOC This sentence was later changed to hide the fact that their actions were in retribution for my voicing concerns about wrongdoing at the Philadelphia VA.
Management officials then falsely asserted that Dr. Dunkman's funds to pay the research nurse salaries were depleted. My co-worker and I were laid off. My co-worker was then rehired, as planned, by Dr. Dunkman prior to the terminations. No effort was made to assist me in obtaining alternative employment, either before or after my termination.
I am now living in the aftermath of having tried to protect my patients' health and welfare. My reports of impropriety and wrongdoing have left me without a job to support myself and have damaged my career irreparably.
I went into nursing to help people. I felt my work in clinical research could accomplish helping millions of people by developing new technology for those of us that suffer with incurable illnesses.
The sick, my patients, committed themselves to me and the medical professionals at the Philadelphia VA medical center. My patients implicitly trusted that their welfare would be protected and the truth about the risks of the research studies would be told to them. From my perspective, this was not happening in the clinic where I worked.
I stood firmly for the rights of the patients and gave them the respect and care that is deserved by any individual, especially our veterans. My efforts have righted some wrongs, but I have suffered greatly for coming forward.
I am here today to ask only one thing of this committee. I ask that the medical professionals who stand up for the patients' rights be protected and not have to suffer. Those who want the truth to be known and try to abide by the government rules and laws set up to protect people should be applauded, not retaliated against and fired.
Remember, we will all be patients some day and will want to commit our trust to our physicians and nurses who care for us. If a whistleblower nurse stands up for our rights, I would hope that we would want them to be praised, and not to have to endure untold suffering, as I have in the past years.
Page 38 PREV PAGE TOP OF DOC Thank you for your invitation to talk to you today and for your concern for the health and welfare of our nation's employees, patients, and veterans. Your concern should be commended.
[The prepared statement of Ms. Pastor appears on p. 73.]
Mr. EVERETT. Thank you, Ms. Pastor.
TESTIMONY OF EARL DICK
Dr. DICK. Mr. Chairman, my name is Earl Dick. I am a physician at the Harry S. Truman Memorial Veterans Hospital in Columbia, MO. I am appearing before the subcommittee in an individual capacity.
I am here to speak to the way the VA deals with people such as me. As tragic and illegal as the retaliation and reprisal has been to my career, it is more horrifying to me to recognize that the VA has institutionalized retaliation and reprisal as a way of doing business.
I want to express my appreciation for the invitation to provide my testimony and statement to this subcommittee.
I am here to speak about the reprisals I experienced from officials at the Harry S. Truman Memorial Veterans Hospital and the Department of Veterans Affairs for the disclosures which I have made.
I believe what happened to me and Drs. Adelstein, Christensen, and Simpson represents the culture of retaliation and reprisal used within the VA.
Page 39 PREV PAGE TOP OF DOC Retaliation and reprisal begins with actions which management perceives to be threatening. In my case, it was the result of my not participating in the cover-up of patient murder in 1992. By September 1992, I was convinced that independent of the excellent medical and nursing care at our facility, that some 11 to 40 patients had been murdered.
Drs. Adelstein, Christensen, Simpson and myself continue to believe that to be the case and as a result of our beliefs and the actions we have taken, all of our careers have suffered.
The agency position has been and continues to be that there is no evidence of murder. In a trial brought against the VA by one of the families, the Honorable Nanette K. Lowery, United States District Judge, stated in her ruling from the bench in August 1998, and I quote, ''Finally, I also find that even absent the testimony about codeine, there is sufficient evidence for me to believe, and I do believe, that Nurse Williams killed Elzie Havrum.''
The epidemiology of the deaths demonstrated murder and was key to understanding what had happened. I was responsible for the regional site visit team, the FBI and the Assistant Inspector General for Health Care Inspections receiving presentations and explanations of the epidemiology.
As chief of staff, I did not cooperate and support the cover-up, even though from my knowledge of the VA I knew I was placing my career at risk.
I have learned that when detrimental information became public the VA has retaliated against me, as I was the chief medical officer of the facility and thus a traitor to the system, not a team player, for not controlling other professionals and not participating in the cover-up.
Following those disclosures in 1992, I received lowered proficiency reports and continued harassment by then hospital director Joseph Kurzejeski. This culminated in 1994, when I was forced from the position of chief of staff by threats, including the loss of employment, from Mr. Kurzejeski, who was aided by the then dean of the University of Missouri School of Medicine, Lester Bryant. I agreed to become ACOS of Education, Associate Chief of Staff of Education.
Page 40 PREV PAGE TOP OF DOC In the spring of 1995, I made disclosures to the OIG of the VA of the events that happened in 1992. In May, I learned of a plan to relocate me from my office space, which subsequently occurred. Dr. Bauer continued to provide me lowered proficiency reports.
In August 1995, I made further disclosures by providing a multi-ring binder which was used at the May 14, 1998 hearing of this subcommittee. That binder contained extensive documentation of the role of Mr. Kurzejeski and region concerning the murders and cover-up to a staff member of this subcommittee.
In the fall of 1995, I received a letter notifying me of a proposed 30-day furlough. To my knowledge, I was the only physician at the hospital to receive such a letter and experienced a brief furlough.
In January of 1996, I was given a copy of the plan to abolish the Associate Chief of Staff Education position.
In August 1996, within 6 weeks of my filing with the Merit Systems Protection Board, I was told by Dr. Bauer of a change in work responsibility, that 90 percent of my time would be as a staff psychiatrist. This proposed change and the plan to abolish the ACOSE position was in fact effected by a series of memoranda from Director Gary Campbell in 1998.
As an active whistleblower in 1997, I cooperated with the Office of Special Investigations of the General Accounting Office in their investigation of the VA OIG report initiated by this subcommittee.
The GAO report, titled ''Inspector General Veterans Affairs Special Inquiry Report was Misleading,'' stated on page 3, and I quote, ''Therefore, the special inquiry's conclusion was not supported by work done or evidence collected and is misleading.''
The memorandum notifying me of further demotion was transmitted to me prior to my attending the subcommittee's hearing on May 14, 1998 and I believe was part of the VA's response to the highly critical GAO report.
Page 41 PREV PAGE TOP OF DOC Immediately upon my return, Director Campbell clarified his assignment of me to the mental health service line and the change in my supervisor. He removed the program assistant from my position. Earlier, he had approved my reassignment from the chair of the education council to an ex officio member. I suffered a demotion.
In summary, I made disclosures to the regional site visit team and to the FBI regarding 11 to 40 patient murders at Columbia. I made disclosures to the Assistant Inspector General for Health Care Inspections, the VA Office of the Inspector General, the GAO Office of Special Investigations and to this subcommittee regarding the 11 to 40 patient murders at Columbia and the cover-up of those murders.
As a result, my career has been demolished. The retaliation and reprisals against me have damaged my professional reputation, lowered my proficiency reports, caused me to lose office space, chairmanship of a council, removed my program assistant, and led to my assignment as a mental health physician. Thus, I have suffered a demotion.
Mr. Chairman, my experience is reprisal and retaliation continue even with changes in hospital directors. Thus, VA's statement of new management is and has been meaningless.
Based on my personal experience, I would urge this committee to discuss reform to end the VA culture of reprisal, retaliation, and cover-up. The lowest burden of proof should apply to the whistleblower. The agency burden of proof should be the highest. The agency has far more resources.
Once a congressional committee accepts and uses information from a whistleblower, that person should be protected from reprisal in any form. I believe this should apply to those of us here as well as Dr. Simpson and those who have aided congressional committees in the last 5 years.
In 1994, I sought relief from the OSC, but because the act approving Title 38 employees went into effect in October, 1994 and it was in August, 1994 when I received my problems, the OSC could not deal with them.
Page 42 PREV PAGE TOP OF DOC My personal experience is such that I have no reason to believe the VA will change its practice of reprisal, retaliation, and cover-up. I can only conclude this represents the culture of the VA. Sadly, I believe change must come to the VA through outside action.
Chairman Everett, there is a price for telling the truth. I and my family have paid an emotional price as well as the loss of income when I was forced from the chief of staff position. I and Drs. Adelstein, Christensen, and Simpson have suffered significant emotional trauma, not only from the retaliation and reprisal, but from the knowledge that these patient murders have gone unacknowledged and free of accountability.
As a result of retaliation and reprisal, I have suffered financial loss of income and cost of defending myself, as have Dr. Adelstein, Christensen, and Dr. Simpson.
Chairman Everett, there is a price for not telling the truth. I believe that the cover-up of these patient murders not only prevented criminal prosecution, but has prevented the hospital and the VA from acknowledging and accepting the responsibility of what occurred.
The families of the veterans are left with continuing uncertainty. Without accepting the responsibility, how are the hospital and the VA able to assure the patients entrusted to it that it will not reoccur?
Chairman Everett, thank you. I would like the committee to know and to remember the cost of truth in the VA is formidable.
[The prepared statement of Dr. Dick appears on p. 80.]
Mr. EVERETT. Thank you very much. Dr. Adelstein.
TESTIMONY OF EDWARD H. ADELSTEIN
Page 43 PREV PAGE TOP OF DOC
Dr. ADELSTEIN. Thank you very much, Mr. Everett and members of the committee. I am a physician, a pathologist, a veterinarian, and deputy medical examiner of Boone County. It has been my pleasant experience in general to work at the VA Medical Hospital, where I have a great deal of affection for the employees and the people we take care of. I have been there since 1972.
I think I would like to address the culture of the VA as it relates to the 1992 deaths and the 1998 decision that was reiterated by Dr. Dick regarding that the VA was found guilty of knowing but not protecting its patients and that one of the patients indeed had been murdered.
If I was to paraphrase the judge, and having attended the trial, what she would have said was there was a cover-up throughout the VA organization and the FBI's evidence was not believable.
When I came to the VA, the director, Mr. Kurzejeski, was a pretty classical autocratic, erratic guy who essentially worked on the basis of reprisals and on a fear basis. It became fairly clear to me that we have a system where basically everybody understands the rules, the rules being if you tell the truth, you are punished, and if you take part in a thing even as heinous as murder that you are actually recognized as a loyal, valuable employee and you are rewarded.
If Mr. Wilson would have only written the check for $25,000, he would probably be a director today instead of a person without a job. In order to actually change the way we do business, that culture will have to be mightily reversed.
Unfortunately, under the organization of Dr. Kizer, things have not gotten better. His first words that he uttered to the VA employees were ''If you think your job is secure, think again.'' Under that kind of threatening basic philosophy, we enter an area once again where changes come about not through rational decision making, but actually through fear and reprisals.
Page 44 PREV PAGE TOP OF DOC In the summer of 1992, I was the acting chief of staff when I essentially altered Dr. Christensen's career forever by asking him to review the data of the deaths of the 40 people. He quickly revealed that this was very serious, and the VA sent a blue ribbon panel of people of highly respected chief of staffs and directors to review the data.
When he first walked into the room, which he went into against the advice of the director and with the concurrence of Dr. Dick, he was told a chilling statement which I have never forgotten, which is that ''you're a foolish young man for being here today.''
And I understood that. I understood exactly what that meant. That meant they all knewand they were all smart enough to understand the datathey all knew that murders had occurred, they all knew that the statistical data was irrefutable and they all knew that his life would become a living hell because he refused to remain quiet.
We continued to press this issue. Dr. Dick essentially wasessentially his career started on a downhill basis since he facilitated that meeting.
We eventually met with the OIG, Dr. Alastair Connell, in a sort of a secret meeting where he told us all we had whistleblower protection. Obviously, we never had whistleblower protection and in an affidavit he signed he denies that he made that statement.
Because Dr. Christensen forced the issue, the OIG was forced to carry out an investigation and that investigation was extremely frightening to me, although I can tell you that all the people who wrote it, Mr. Trodden, Mr. Kroll, Mr. Lucas, Mr. Cole have all retired, as would seem to be the way one deals when they cover up terrible events.
That report, as you know, was presented before this committee and was found to be not credible. For myself, I simply believe maybe that was business as usual. That report, when viewed by the GAO, actually determined it was misleading because it never actually investigated whether there was a cover-up, but we from rural Missouri would have used the words ''that report was lies, damn lies and dangerous lies,'' because as far as we could tell, there was never an honest determination.
Page 45 PREV PAGE TOP OF DOC And I was further fairly uncomfortable that Mr. Griffin, the new person, head of the OIG, essentially supported the old report as pretty much correct with just a few small changes. So we have little reason to believe that things are really changing.
The FBI was brought in and they likewise seemed to be compromised in their ability to deal with the deaths and essentially only after a great deal of pressure generated an unsigned report, in spite of overwhelming forensic evidence leading to the deaths.
During the next period of time to 1998, essentially we suffered a barrage of reprisals, extremely similar to what you have heard here. Campaigns of disinformation. I mean, when everyone comes to the VA, they point me out as someone who is dangerous and someone who is really about to destroy the hospital because we are the truth tellers.
They do the classic things that have been talked about: threats, poor evaluations. Actually, if these people were smarter, I mean, because they are mean, we would be in grave trouble, but fortunately they are just mean and not that smart.
In 1998, I testified both as a deputy medical examiner and as a VA employee in the case of Elzie Havrum versus the VA. I gave really critical damaging evidence. For instance, I pointed out that from Jesse Brown to Dr. Kizer to many people throughout the VA, they were all aware of the deaths, they were well aware, I believe, that they had a serial killer. They refused to take responsibility. They actually turned this nurse loose, where I investigated his performance in local hospitals where more deaths occurred.
The lawyers were extremely upset with my testimony. As a matter of fact, they asked for an immediate transcription of my testimony. I took that not to be a good sign. But since we are truth-tellers, I feared nothing.
Unfortunately, in August of 1998, while I was on vacation, I received a summons that an investigating board was coming to see me regarding allegations of theft of a controlled substance, a charge so serious that it could end my career, a charge so serious that every time I apply for my physician's license I have to document those events that took place.
Page 46 PREV PAGE TOP OF DOC This allegation was unfounded. It was based on the fact that in 1996, in an issue that had been well reviewed, as a veterinarian and as a humanitarian act I had asked for and received and got permission to use a small amount of euthanol so I could put to sleep a suffering animal after work at my own time and expense. It was not an uncommon process, and I have affidavits from the people documenting those events.
Nevertheless, when this board came during my vacation time, giving me no notice, no chance to prepare a counsel, I was told by Dr. Hoyt, who was the chief radiologist, since I refused to take this seriously that these people had a very substantial agenda, that one of them had confessed to him privately that this was a political agenda being carried out on a high level and, as a matter of fact, I took opportunity of that to protect myself, they dismissed the charges.
Let me just make some closing statements, that it is no funand this is our solutionthere is no pleasure in the documentation of wrongdoing. I mean, I think we have all heard that.
Certainly the VA at the highest level must realize they are sitting on a ticking time bomb where if not diffused by honest actions it will be revealed as the largest health care system to be fatally flawed and undeserving of the trust of the patients. This is the best documented case of lying, cover-up perjury and misdoing that I can imagine. We have done enormous amounts of work, I would like to believe, for this committee.
So I ask you in the name of justice to pursue all aspects of these events. I believe a grand jury should be convened, individuals deposed, the truth revealed and punishments levied.
Just like in the series ''Happy Days,'' when the Fonz says to Richie, ''Sometimes, you have to fight in order to prove that you're tough.'' I believe that sometimes this committee will have to fight.
Page 47 PREV PAGE TOP OF DOC If just one time you can reach in the back, take awaytake away the pension from a person who has covered up murder, change the way people think, most of the people in the VA are decent, good people and would rather tell the truth, as a matter of fact, but we have a system where telling the truth is dangerous and lying is the avenue to promotion.
So I ask that you have the courage and, as we would say in rural Missouri, the guts to pursue those actions so these events never occur again.
[The prepared statement of Dr. Adelstein appears on p. 83.]
Mr. EVERETT. Thank you very much. Dr. Christensen.
TESTIMONY OF GORDON D. CHRISTENSEN
Dr. CHRISTENSEN. Mr. Chairman and members of the committee, Dr. Dick and Dr. Adelstein have already established that I was the physician who correctly identified the nurse (as the most likely cause of the unexplained deaths on Ward 4 East at the Truman VA Hospital) and alerted the IG to the cover-up of these deaths. They have also mentioned that the IG performed an investigation and falsely reported that there was no cover-up. That issue has already come up before this committee.
My purpose in reminding you of that is that unlike the Veterans Health Administration under the leadership of Dr. Kizer and unlike the Office of the Inspector General under the former leadership of Mr. Trodden, I speak the truth.
Now let me tell you how the VA treats a truth-teller.
After the 1995 hearing, Dr. Kizer invited me to Washington and offered me the position of Medical Inspector. I would like to have had the opportunity to fix these problems from within, but after discussing the position with personnel at VA headquarters, I concluded Dr. Kizer's offer was dishonest. It appeared to me that Dr. Kizer did not support the Medical Inspector's office and would not hold senior management responsible for their misdeeds, so I declined the position.
Page 48 PREV PAGE TOP OF DOC When I returned to Columbia, I confronted an office crisis. For the first time in my career, I faced controversy and angry criticism prompted, I believe, by my VA superior, Dr. Bauer, in retaliation for my whistleblowing. By the end of the summer, Dr. Bauer charged me with poor administration of research funds, mismanagement of the equipment inventory, and unprofessional and disruptive behavior. On August 19, 1996, he asked the hospital director, Mr. Campbell, to relieve me of my duties. Instead, Mr. Campbell arranged for the VA to appoint a panel to review my performance.
Even though I knew Dr. Bauer's charges were bogus, I believed it would be pointless to fight the VA, so I asked Dr. Bauer if we could negotiate my resignation from the VA. Dr. Bauer refused. My attorney repeated this offer to Mr. Campbell and to Dr. Kizer, but they also refused. For this reason, I am convinced the VA intended to destroy the credibility of my accusations by destroying my professional credibility and with it, my career.
On November 6 and 7, 1996, a VA panel convened a kangaroo court to review my performance. They did not follow due process. I was not allowed advice of counsel. There was no record of the proceedings. I was not allowed to hear or rebut the testimony against me. Nevertheless, after hearing my side of the matter, the panel agreed that the evidence did not support the charges.
I thought that ended the matter, but 8 months later, I received an unsigned, undated copy of the panel report which recommended my removal. The next day Dr. Bauer rated me unsatisfactory on my 1996 performance appraisal, setting the stage for my forced removal. With the help of legal counsel and, I suspect, Members of Congress, the demotion did not proceed. Instead, Dr. Bauer left the VA.
Following the departure of Dr. Bauer, I calmed the Research Service and reestablished our tradition of efficient service. Throughout the ordeal, I kept our expenditures under budget while maintaining full administrative services. In 1997 and 1998, we were one of the few Research Services in the VA system to demonstrate an increase in research funding. In 1998, we set aside $70,000 from operating funds for the recruitment of a new physician investigator to the hospital.
Page 49 PREV PAGE TOP OF DOC But I continued to work in a hostile environment. I had to give up my position as Chief of Infectious Diseases. I am excluded from committee appointments and high level planning. Senior management and Dr. Bryant, the dean of the medical school, have publicly complained on numerous occasions that the bad publicity caused by my actions could close the hospital and cause people to lose their jobs.
The reprisals escalated in the weeks surrounding the Havrum trial, which was held between July 27 and August 8. On July 10, while vacationing in Canada, I learned without explanation or warning that Mr. Campbell, the Hospital Director, had vetoed my appointment to the VA Disciplinary Appeals Board and canceled training I was scheduled to receive in Denver.
When I returned to Columbia, I learned that Dr. Adelstein would have to face a Board of Investigation over an incident involving the drug Sleepaway that had taken place in the Research Service in December 1996, nearly 2 years before.
I was not personally concerned because the matter did not seem to involve me. I had filed a full report with Dr. Bauer in August of 1997, a year earlier, and his staff assistant had told me that everything was fine. It seemed to me that resurfacing the issue just before the Havrum trial was an attempt to intimidate Dr. Adelstein.
I did not know it at the time, but on August 20, the hospital reported to the Drug Enforcement Agency the Sleepaway incident and Dr. Adelstein. The hospital claimed this incident had just come to their attention. Naming me by name, the hospital said I had failed to report this incident to them. This was a lie. The hospital knew about this incident 11 months earlier, when I had reported it to Dr. Bauer.
On July 22, Mrs. Patricia Crosetti, the VISN director, appointed a Board of Investigation for the Sleepaway incident and, on September 1, 1998, she expanded the scope of the Board Investigation to include a review of my performance.
Once again, the Board did not follow due process. The Board did not warn me that I had been made a target of this investigation. I did not have advice of counsel. I was not allowed to submit evidence in my favor. In the end, Board recommended that I receive written and oral counselling.
Page 50 PREV PAGE TOP OF DOC During the same time, Mrs. Crosetti's office began planning a proposal to eliminate my position and combine our Research Service with the St. Louis Research Service. The proposal, however, encountered heavy criticism, and I suspect it has been withdrawn.
It is impossible to fight a 6-year campaign with the Federal Government and maintain high level professional productivity, but I have enjoyed success. I continue to publish research articles and I have obtained a merit review research grant. I regularly receive top scores for my teaching. My physician colleagues selected me to be added to the list of best doctors, and my university colleagues elected me to the faculty senate.
This ordeal has taken a personal toll. I have spent more than $50,000 defending myself. The conflict has hurt my daughters and my wife. It has also hurt my friends and co-workers. Some have become targets simply because they are associated with me, others, like Dr. Andrew Simpson, have become targets because they helped me fight this issue.
Perhaps the VA thought they could hound me out of the practice of medicine, but I will not leave. I will finish this. I insist that the VA cease behaving like a public monarchy ruled by little emperors and queens. I insist the VA start conducting its business like a public service, according to public law, staffed by public servants who put loyalty to the highest moral principles and to country above loyalty to the Department of Veterans Affairs.
Thank you very much, Chairman Everett, for your support.
[The prepared statement of Dr. Christensen appears on p. 90.]
Mr. EVERETT. Thank you, and I want to thank all of you for agreeing to appear here today. I know when each of you started down the course of becoming whistleblowers, you never thought you would be before a congressional committee under sworn testimony. You did it because you thought it was the right thing to do and that right people do right things. It has been my disappointment to find out that that does not necessarily happen.
Page 51 PREV PAGE TOP OF DOC You are private citizens who happen to be or have been VA employees and you spoke up. Your lives are changed forever by your actions and the actions those in authority taken against you. All of you have suffered greatly because of what you did, because you did what you thought was right.
As chairman of this subcommittee, I thought each of you should have the opportunity if you desire to be heard in public about your experience as a whistleblower.
The five whistleblowers from Columbia, MO and Alabama have been recognized, perhaps belatedly, as whistleblowers by the VA. In fact, all five have been providing a considerable amount of information to the committee and subcommittee.
Ms. Pastor, a former medical research employee of the Philadelphia VA Medical Center, is in a different situation and is still seeking an official acknowledgment that she is a whistleblower. She was invited here today because the subcommittee could corroborate certain parts of her allegations significantly enough to believe that they raise legitimate issues. Of course, her testimony was under oath, along with everybody else's.
This has been powerful testimony. Before the witnesses were whistleblowers, they prospered, their careers flourished. I find it very ironic that every single one of you had outstanding performance records up until the day you became whistleblowers and completely a 180 degree change from that point on. That alone is an indictment against the VA system. That can be read no other way than as a singular indictment against the culture that exists in the VA, retaliation and abuse of position and authority that we have just heard about and the wreckage that it causes. It cannot and should not be tolerated by the VA any longer.
Those are old words. I have had the privilege of meeting with some of you before. I want to tell you it is hard to turn this train around.
There is a culture that exists within the VA, it is very deep-rooted and you are right, these hospital directors think that is their little kingdom and they are going to run it just like they want to run it.
Page 52 PREV PAGE TOP OF DOC I had a disabled veteran in my office, a double amputee sitting in a wheelchair, who had a run-in with a hospital director. He told the hospital, ''Well, I'm going to write my Congressman.''
The hospital director looked at him and said, ''I don't give a damn what you write. I've been doing this for 20 years and I'm going to run this hospital the way I want to run it.''
That, too, is an indictment against the culture that exists within the VA.
Dr. Adelstein, the board of investigation over the dog incident, I mean, that is Keystone Cops. That is so stupid and ridiculous that it infuriates me that it even happened. Whoever initiated that action really ought to be removed. I mean, it is just plain stupid.
You were right, Dr. Christensen, you mentioned a kangaroo court. It seemed to me that they are prevalent within the VA. I see cases of it over and over and over and this subcommittee is really getting tired of the situation that exists in Columbia, MO, and I will have more words about that later.
First of all, let me ask you to be very brief because we do have another subcommittee hearing, a full committee hearing, that will follow this immediately in this same room. Very briefly, can each of you tell me where you were retaliated against, at what point in your career and what for?
Mr. Wilson, I am sorry, we will start with you.
Mr. WILSON. It began with the consolidation of Montgomery and Tuskegee, and that was in 1997.
Mr. EVERETT. Mr. Bumgardner, the same?
Mr. BUMGARDNER. Yes, sir. I have May of 1997, when I met with you in Montgomery in the mayor's office, basically it started then.
Page 53 PREV PAGE TOP OF DOC Mr. EVERETT. Dr. Adelstein?
Dr. ADELSTEIN. It seriously occurred in 1992, when I was responsible for partially disclosing about the deaths and the cover-up.
Mr. EVERETT. In 1982?
Dr. ADELSTEIN. 1992.
Mr. EVERETT. 1992. Continue.
Dr. DICK. It also for me was in 1992, when it began, and it has continued until the present time.
Mr. EVERETT. Dr. Christensen?
Dr. CHRISTENSEN. Again, September 2, 1992, when I would not be a team player and participate in the cover-up of the deaths.
Mr. EVERETT. Ms. Pastor?
Ms. PASTOR. August of 1996 through May of 1998.
Mr. EVERETT. What has the VA donecan any of you name anything the VA has done to protect you, particularly those of you who are the five recognized whistleblowers?
Dr. DICK. No.
Dr. CHRISTENSEN. There have been no lessons learned by the VA. If the same thing occurred today, I have every reason to believe the same events would take place again.
I believe we do have a system that promotes people to high positions who have demonstrated a lack of integrity and honesty. If they get to a high level, these people allow the system to make these mistakes.
Dr. ADELSTEIN. I found no protection whatsoever. As I said, I have a local grievance and an Office of Special Counsel investigation that is current, but going through the local process has been very futile so far.
Page 54 PREV PAGE TOP OF DOC Mr. EVERETT. Mr. Wilson?
Mr. WILSON. No, sir. None whatsoever.
Mr. EVERETT. Do any of you know what has happened to the people that did the injustice to you?
Dr. DICK. Mr. Kurzejeski retired. In the year of the deaths, I believe, he received his first bonus from the VA, and I believe that was a $20,000 bonus. And he also received a bonus upon retirement. Mr. Campbell, who is the current director, I believe is receiving bonuses at this time.
Ms. PASTOR. Dr. Dunkman has continued to work at the Philadelphia VA and he, to my knowledge, has not had any problems from all of the wrongdoing.
Mr. EVERETT. Continues to work? Now, this is the gentleman that gathered up old medicine, repackaged it, and distributed it to patients?
Ms. PASTOR. Yes.
Mr. EVERETT. Well, that is really
Ms. PASTOR. And caught.
Mr. EVERETT. That is real reassuring that he is still working. That really is.
Mr. BUMGARDNER. Mr. Clay and Mr. Hawkins have been detailed, but also the selection for the administrative service chiefs, we were told it would have to be approved by Mr. Deal and Mr. Deal is still a VISN director and I understand received, I believe, a presidential rank award.
Dr. ADELSTEIN. From my impression, the people in charge of the quality assurance program are still in place, as well as the public relations people who worked very hard with the director to maintain the cover-up.
They still maintain their positions, having had numerous promotions and advancements within the system. The dean of the university school of medicine, when he was actively taking action against Dr. Christensen and Dr. Dick, became a member of the prestigious senior management advisory committee in the VA, and I felt all those were directly resultant to his actions in suppressing the murders.
Page 55 PREV PAGE TOP OF DOC Mr. EVERETT. Thank you. Ms. Brown.
Ms. BROWN. Thank you, Mr. Chairman.
I want to thank each of you for what you have done. Knowing that you were risking your jobs, you reported serious situations ranging from mismanagement to unnatural patient deaths. You are whistleblowers and you have faced retaliations.
We have read your testimony and we share your sense of outrage. I want to thank each of you for your courage and your integrity.
For the whistleblowers, VA points out that none of you have received disciplinary action. Can you respond to that?
Dr. CHRISTENSEN. We have each received a series of criticisms, some in writing, which formed the foundation for a job action. Your point is correct, that none of us have been fired at this point, but we feel that the knife is imminently over our head.
Ms. BROWN. What about loss of pay or pay grades? Or does someone else want to respond to that?
Dr. DICK. The VA has lowered proficiencies, it has reassigned duties, it has removed employees from supervision, it has changed my supervisor to someone else.
I lost some $20,000 a year of income from the time that I left the chief of staff position, so that is over 4 years ago. I also, as Dr. Christensen, have had legal expenses trying to defend myself. The out-of-pocket costs have exceeded $65,000. There are still unpaid bills.
Dr. Simpson, who also worked with us on this, told me that he has lost salary of some $52,000 to $54,000 over the period of time.
Dr. ADELSTEIN. In general, my threats have been mostly to destroy my career by firing a silver bullet in my heart, which missed, regarding the allegation of theft of a drug and just because they missed does not mean that it is not serious and it is even more serious because as a witness, both as a VA employee and as a deputy medical examiner, I believe that is a serious violation of a public official's responsibilities and I think it should be taken very seriously. I believe that is a criminal offense.
Page 56 PREV PAGE TOP OF DOC Mr. BUMGARDNER. While I did not lose pay, I have incurred close to $10,000 in legal expenses so far. I think the most tragic thing is the loss of health that I have incurred. The stress that I underwent and the stress that I go under now rehashing those things that took place against me.
Mr. WILSON. No, ma'am. I chose to leave the situation and find myself another job somewhere else.
Ms. BROWN. Once again, I want to thank each of you for your whistleblowing.
Mr. EVERETT. Again, I would also like to thank you and while I find your testimony very credible and heartrending and scary in some cases, obviously, it shows the power that can be brought down on an individual by officials of this government, and that power should have controls on it. And I do not see those controls being exercised properly.
Dr. Adelstein, not to disagree with you, but let me just simply point out that I have been here doing this job or other committee chairmanships for 7 years and I am familiar with Dr. Kizer and the things he says and does, and I do not believe the statement he made that your job is not secure was made in the context of whistleblowing.
Dr. ADELSTEIN. No, it was not. It was a general statement made when he came to take over the organization.
Mr. EVERETT. The reorganization of the VA system.
Dr. ADELSTEIN. That is exactly correct, but I saw it as not a friendly statement for working well together.
Mr. EVERETT. Thank you very much. And I again want to thank this panel for appearing here today and also for the courageous steps that you have taken, not only to protect our nation's veterans, but also the nation's taxpayers.
What you have done is good for the nation and I am sorry, I am truly sorry, that you have been put in the position that you have been put by your government.
Page 57 PREV PAGE TOP OF DOC Thank you very much.
I recognize Mr. Eugene Brickhouse, Assistant Secretary for Human Resources and Administration, and Ms. Leigh Bradley, General Counsel, and have them introduce the rest of their panel, please.
Let me welcome you and ask that you all please rise.
Mr. EVERETT. Let me start off by sayingwith a little gripe, if you do not mind.
As the VA knows, I sent two letters to the department about whistleblower retaliationone letter is dated September 8, 1998 and the other letter was a follow-up update November 23, 1998asking where the answer to the first letter was. Maybe it was too subtle.
The department's answer finally came on February 24, 1999, despite several inquiries at my direction by my subcommittee staff as to the reply's status.
I ask unanimous consent that the letters and the reply be made a part of the record. The department's reply will be redacted.
(The letter follows:)
"The Official Committee record contains additional material here."
STRIP OFFSET FOLIOS 01 TO 05 INSERT HERE
Mr. EVERETT. I want to know why it took the VA more than 5 months to answer my letter. I hate to think what kind of responsiveness this means to our veterans when an oversight subcommittee chairman cannot get an answer to an official inquiry on an important matter.
Page 58 PREV PAGE TOP OF DOC The VA has a system at Central Office called EDMS for tracking correspondence, and I want to know who at the department had the reply to my letter and for how long.
Finally, I want to know what the VA is going to do ensure that this does not happen to not only this subcommittee chairman, but any subcommittee chairman again.
If any member of the panel would like to respond to that, I would be happy to get a response.
Mr. BRICKHOUSE. Sir, I would like to submit to you that the VA apologizes and has no excuse for not answering those letters in a timely way. We have had some discussions about how we answer correspondence and I think you will see some steps taken to not allow that to happen again.
I will gladly provide for the record the answers to your two specific questions, who and how long, and what we are going to do to correct the problem for the record.
Mr. EVERETT. I appreciate that. You may now proceed with your testimony.
TESTIMONIES OF EUGENE A. BRICKHOUSE, ASSISTANT SECRETARY FOR HUMAN RESOURCES AND ADMINISTRATION, DEPARTMENT OF VETERANS AFFAIRS; AND LEIGH BRADLEY, GENERAL COUNSEL, DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY KENNETH CLARK, CHIEF NETWORK OFFICER, VETERANS HEALTH ADMINISTRATION; RONALD E. COWLES, DEPUTY ASSISTANT SECRETARY FOR HUMAN RESOURCES MANAGEMENT, DEPARTMENT OF VETERANS AFFAIRS; AND WALT HALL, ASSISTANT GENERAL COUNSEL, DEPARTMENT OF VETERANS AFFAIRS
TESTIMONY OF EUGENE A. BRICKHOUSE
Mr. BRICKHOUSE. Good afternoon, Mr. Chairman, and distinguished members of the committee.
Page 59 PREV PAGE TOP OF DOC We thank you for the opportunity to appear before you and share information on protections offered and afforded to our VA employees who believe they may be subject to retaliation for disclosures or complaints. As you can appreciate, this is a complex matter that crosses organizational lines within VA.
With your permission, I will introduce my colleagues at the table and very briefly summarize the department's formal testimony. Then the General Counsel would like to offer brief comments. We understand that the full written statement will be submitted for the record.
Mr. EVERETT. Absolutely.
Mr. BRICKHOUSE. And, of course, we will be pleased to respond to any question that you may have.
Seated with me at the table is Mrs. Leigh Bradley, VA General Counsel. To my left, Ken Clark, Chief Network Officer, Veterans Health Administration; Mr. Ron Cowles, Deputy Assistant Secretary for Human Resources Management; and Walt Hall, Assistant General Counsel.
And might I add that we are also accompanied by Mr. Chuck Delobe. He is Director of the new Office of Employment Discrimination Complaints Adjudication. Also Mrs. Ventris Gibson, Deputy Assistant Secretary for Resolution Management; and John Klein, Assistant General Counsel.
Mr. Chairman and members of the committee, there are a number of avenues for VA employees, indeed for all federal employees, to pursue if they feel they have been retaliated against because of whistleblowing or other complaint activities. These are outlined in our testimony.
More importantly, we understand that the committee wants to know how effectively VA communicates this information to employees and how aggressively we ensure compliance with those protections. VA fully supports the protection of whistleblowers and will not condone reprisal against them.
Page 60 PREV PAGE TOP OF DOC At the same time, we recognize that there are steps that we can take and, in fact, we have already initiated many of them, to improve our management of whistleblower protection matters. These include centralized information collection to ensure more effective program management; emphatic, consistent and renewed guidance on rights and responsibility of the employees and managers; and strict accountability, including discipline as appropriate when violations take place.
It is critical that employees have a sense of trust in the protections that they are afforded and that they feel they can exercise their rights and their responsibilities without fear of reprisal. VA is committed to developing a workforce that understands this and takes it seriously.
Mr. Chairman, in concluding, I want to again apologize on behalf of the department for the failure to respond in a timely manner to your letter of September 8, 1998. This delay, in my opinion, was inexcusable and it will not happen again.
Your follow-up letter dated November 23, 1998 has been referred to my office and we are coordinating with your staff and with other VA offices to develop the information that you have requested.
At this point, I would like to turn to Mrs. Bradley, VA general counsel, who is going to say a few words on behalf of the Secretary.
Thank you very much.
[The prepared statement of the Department of Veterans Affairs appears on p. 95.]
Mr. EVERETT. Without objection, Ms. Bradley.
TESTIMONY OF LEIGH BRADLEY
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Ms. BRADLEY. Thank you. Mr. Chairman, Congresswoman Brown, I would like to take just a moment to emphasize some of the things that Assistant Secretary Gene Brickhouse has said.
VA is serious about doing what is necessary to improve its efforts in all aspects of whistleblower protection. Secretary West has expressed to me personally and asked that I convey to you this morning his determination to identify what needs to be done. He is committed to seeing to it that those things are done and done without undue delay.
The Secretary has personally informed senior VA management that Assistant Secretary Brickhouse and I have been tasked by him with overseeing this VA effort. We are to keep him closely informed and we will do so. Toward this end, a task force has been established at the Secretary's request to take a hard look at VA's policies, practices and experience in this area.
The task force is now drafting its charter. One of its charges will be to identify the information needed for proper management of whistleblower protection matters, including the establishment and maintenance of a centralized repository of information pertaining to all reprisal or whistleblower cases arising within our department.
Our expectation is that the work of this team will lead us to new initiatives which VA can implement to better encourage whistleblowers to come forward, to better prevent retaliatory actions against them when they do so, and to better respond to such retaliation when it is found to have occurred.
This will not be an easy task, but it is vitally important that we underscore our commitment to this and related efforts in order to assure that our department has done all that it can to encourage the disclosure of illegality, waste and corruption and to protect those who uncover it.
We appreciate this committee's focus on these issues and we value the support and perspective its members and staff can offer us as we proceed.
Page 62 PREV PAGE TOP OF DOC Thank you, Mr. Chairman, and at this time we are prepared to respond to your questions.
Mr. EVERETT. Thank you very much.
Dealing with whistleblowing and retaliation situations is sometimes very difficult, and I appreciate that. As I said in my letter, reprisal can be as subtle as it is ugly and whistleblowing does not make employees immune from legitimate performance and disciplinary reviews.
But having said that, the VA's February 24 response is remarkably similar to what the committee heard from the VA after the sexual harassment cases in Atlanta VA medical center in 1993.
I know your intentions are good, but this committee sat here and heard the very same thing in that situation, much sound and fury about zero tolerance of sexual harassment and very little in the way of real change because 4 years later almost the same thing happened again somewhere else. As a matter of fact, there are probably severalthere were over a dozen cases that happened.
This bipartisan subcommittee had to take it away from the VA and drive the change by statute, an amendment that I wrote that was passed by the Congress.
You are going to have to convince me this time that VA can effectively change on its own. I do not hesitate in saying it will not matter in the future years if Terry Everett is sitting in this chair or Ms. Brown is sitting in this chair, we intend to protect VA whistleblowers.
You have heard the testimony of six current or former VA employees. The government accountability project has summarized the tactics of retaliation most often used against whistleblowers. I ask the VA if they heard evidence of any of the following reprisal activities:
Page 63 PREV PAGE TOP OF DOC Did the VA make the whistleblower instead of his or her message the issue?
Did the VA try to brand the whistleblower a chronic bad employee? It is remarkableit is remarkable that every single one of the people sitting at that table that preceded you had outstanding performance records over and over and over again until the day they became whistleblowers. At that point, their performance records went down the tube.
Did the VA ever threaten them into silence?
Did the VA isolate or humiliate them?
Did the VA set them up for failure?
Did the VA persecute them?
Did the VA try to eliminate their jobs or perilize their careers?
Anyone may answer.
Ms. BRADLEY. Mr. Chairman, let me start off our response and tell you that I share your concerns. We need to underscore a commitment to ensure that we take appropriate corrective action when we find out that someone has in fact been reprised against for making protected disclosures.
I think that each one of the cases that was presented today at the witness table is a different one and, as you know, we could talk about each individual case and what we intend to do with respect to each individual case.
But before we get into specific cases, I just want to be clear on the record that part of Secretary West's commitment and the commitment of Assistant Secretary Brickhouse and myself is that we want to not just look at discipline that is taken against the wrongdoer, but to renew our focus on making whole those courageous people who come forward. And I assure you we will do that.
Mr. EVERETT. I certainly appreciate that and also, by the way, congratulations on joining the team, and I like to know that a fellow Alabamian is involved.
Page 64 PREV PAGE TOP OF DOC But I hope you will understand that much of what has been said by you today has been told to his committee in other cases, for instance, the sexual harassment case, and there simply was no follow-through.
The thing that concerns me that there is without question a good old boy network within the VA. That is without question. And we can give you example after example, there is no need to, of where higher ups have been given no discipline whatsoever for the actions they have taken.
We have one director that was transferred after sexually harassing, physically or verbally, five women who under oath sat at that table and testified, the man was transferred to Florida, where he already had a retirement home.
Now, what kind of punishment is that? It is no punishment. It was only at this subcommittee because the VA had signed a document saying that they would not prosecute, bring any charges against that director, to get him to leave his position. The guy ought to be fired. Period. He is unfit to serve within the VA or any government agency. Yet he was given a pass, he was allowed to go to where he already owned a vacation home and, by the way, got a raise out of it, I think a $85,000 relocation fee.
These are the kind of things that we see over and over again and you will hear me say this a lot, but the culture within the VA has simply got to change or the VA will no longer be able to exist. It cannot exist under this present culture. It just simply cannot do it.
The cases that I read off to you, I am simply saying these are the ways that retaliation takes place and these aresome of them are ugly and some of them are subtle and this is what you are going to have to look forward to solving.
Ms. BRADLEY. May I respond?
Mr. EVERETT. Certainly.
Ms. BRADLEY. Chairman Everett, as you know, I was sworn in in October of last year and I can assure you that the case that you are talking about has been briefed to me and mentioned, I would guess, at least once a week.
Page 65 PREV PAGE TOP OF DOC I know it is not a large step forward, but I can assure you that there were some significant lessons learned from that case and some significant changes in the way we review disciplinary matters based on our actions or lack thereof in the case to which you were referring.
Now, one of the measures that I am speaking of is something that I guess I would term an enhanced review mechanism. I believe that you are aware, but let me also make clear for the record that now in the case of any senior official who is proposed for some disciplinary action, the matter is not simply reviewed out in the field.
Those senior officials' proposed actions must come forward to the Central Office where now my office is involved and in fact I am personally involved. Those actions are also reviewed in the Office of Human Resources Management by Gene Brickhouse and his staff and ultimately may go to the Deputy Secretary of Veterans Affairs and the Secretary of Veterans Affairs.
So that is also another way to provide a second layer, if you will, of review and accountability because as we all in this room know, accountability is what is critical if whistleblowers in the future are to feel that they can come forward and that management will support them.
Mr. EVERETT. Thank you very much. Ms. Brown.
Ms. BROWN. Thank you, Mr. Chairman.
What does the VA intend to do to give its employees confidence that they can go up the chain and report incidents of mismanagement, fraud or other crimes or breach of patient safety without fear of reprisal?
Mr. BRICKHOUSE. Congresswoman Brown, I think that we have already identified and initiated many matters to deal with that.
For example, as Chairman Everett mentioned, there was a law passed dealing with how we handled EEO cases within the VA last fall. I think VA's implementations of that legislation, forming two organizations to deal with these matters differently, is already paying a great benefit to the employees.
Page 66 PREV PAGE TOP OF DOC On the whistleblowing matter, as Mrs. Bradley has already mentioned, we did not wait to come down here and be a part of this hearing today. We have already initiated and set up a review team to find better ways of dealing with these matters.
As another example, Ms. Kaplan this morning said from OSC that she wanted to establish a liaison. We have already talked to her and we will do those kind of things.
So in summary, I think in calendar year 1997 and 1998 we embarked on many areas to deal better with EEO, especially sexual harassment, and we are going to deal with whistleblowing in the same manner.
Ms. BROWN. In reviewing some of these cases, the length of time that it takes to resolve these cases, why is it that it takes so long?
Mr. BRICKHOUSE. I am going to ask my colleagues here at the table to help me with this particular question.
Ms. BRADLEY. I think that our experience proves that particularly in some of the more contentious whistleblower cases you have layers upon layers of witnesses that have to be interviewed.
For example, in the Central Alabama case, there were over 100 allegations that were brought forward to the attention of the IG. He began his investigation, I believe, in June of 1997.
Nearing the end of 1997, additional allegations, this time about employee reprisal, were brought to his attention and so he had to follow up on those. There were, I believe, six witnesses that were interviewed pursuant to those allegations.
We received the first draft of the IG report in the Central Alabama case in March of 1998. Additional site visits were made by the Veterans Health Administration and then finally after all of the evidence was amassed there were a series of meetings because there were some differences of opinion as to how to interpret the evidence and how to take appropriate action.
Page 67 PREV PAGE TOP OF DOC So I have to tell you that while I do apologize for the length of the process and I feel bad because, as I believe Chairman Everett said, what happens is this leaves whistleblowers and the entire organization hanging in the wind. However, we also have to make sure that we are very thorough and exhaustive in our reviews, that we are fair to people in terms of their rights under the law, and we at Central Office need to feel confident that the actions that are being proposed at a lower level are in fact appropriate.
So we can work hard on trying to make the process more efficient, but I do not want to lead you to believe that we can make significant strides in that respect because the process is going to take a considerable amount of time, particularly in these whistleblowing cases.
Ms. BROWN. Many of the whistleblowing cases we have examined seem to bear out the suggestion made by the Office of Special Counsel that attention is needed to be given to personnel training, particularly for directors who have purely medical backgrounds. I assume when they were in college they did have some human skills training, but what is the department planning on doing?
Mr. BRICKHOUSE. Congresswoman Brown, we have been conducting training. I have to admit to you, though, it has been completely decentralized and as we have reviewed it, we have found that the training at the decentralized level is inconsistent and so what we think we need to do and part of the task force's charter is to find a better way of conducting more training, that is one thing we are going to do, and also we will find a way of doing it more consistently across the VA in its entirety.
So in summary, we are doing training but it is not consistent across the board. As you know, we are a very large activity, 500 facilities located around the country, but, again, I can commit to you that this review team will look at it and we will do some of those things differently.
Page 68 PREV PAGE TOP OF DOC For example, another thing that we do on an annual basis, is require ethics training for all of our employees. Why not add training on whistleblower protections to it? And that has been discussed.
Ms. BROWN. Lastly, what can we in Congress do to assist you in doing your job better?
Mr. BRICKHOUSE. Let us go back to the public law that was passed back in 1997. I do want you to know that we worked very closely with your staffs on effecting and implementing that. Your professional staffers came out and looked at our training and reviewed our programs as we were effecting and implementing that new law and I think we have done a good job of that.
I think we do not need a new law to deal with whistleblowing, in my opinion, as we had for EEO. I think we are going to take some initiatives on our own. I think we can closely keep you and your staffs advised of what we are doing and let you be a part of it and let you help guide us through this.
Ms. BROWN. Thank you, Mr. Chairman.
Mr. EVERETT. Thank you.
Let me make a few closing comments and then a closing statement.
First of all, I would like to ask you to please report to the subcommittee in 60 days on the action the VA has taken with respect to the matters raised at these hearings, and I make specific reference to the six people on the panel, any action or the lack of action taken in cases involving them or anything you get involving them. And I include lack of action.
I would like to comment on fact the VA physician researcher in Philadelphia collected old and sometimes expired medications from patients, rebottled them, and gave them to other patients at the hospital.
I must say that whatever the doctor's motivation was, this is one of the most bizarre episodes in a VA hospital I have ever heard of. I would think that the person who exposed this would almost have to be considered a whistleblower. In that respect, I would ask you to take another look at Ms. Pastor's allegations and what has happened to her since her case. And I repeat, that is very bizarre and I find it disturbing, frankly, that that doctor is still practicing at that facility.
Page 69 PREV PAGE TOP OF DOC The subcommittee has asked the VA to provide a copy of the Philadelphia VA Medical Center memorandum dated June 9, 1997 regarding Joan Pastor, and it was provided. That is correct, I believe. And I ask unanimous consent that it be made part of the record.
This memo appears to list several protected activities, such as filing complaints, as a basis of wanting to move Ms. Pastor out of her assignment or to terminate her. The memo could be subject to several interpretations, but I would have to think that this is a strong case in Ms. Pastor's favor.
(The information follows:)
"The Official Committee record contains additional material here."
STRIP OFFSET FOLIOS 06 TO 08 INSERT HERE
Mr. EVERETT. Finally, I want to thank all of our witnesses for appearing today, particularly those that came to share their personal experiences as whistleblowers. There is no point in pretending that they have faced anything other than a hard road as a result of their courage.
On behalf of the subcommittee, I thank them for their acts to protect our veterans and taxpayers from fraud, waste and abuse. Their only reward has been trouble and I am sorry for that.
They deserved much better. I hope that this hearing and what results from it will improve the situation for them and other whistleblowers within the VA.
I intend to ask the General Accounting Office, the independent investigation arm of Congress, to do a review and report on the effectiveness of the whistleblower protection provided to VA health care professionals when the Whistleblower Protection Act was amended in 1994 to include them. Changes in the law does not necessarily mean protection automatically followed. More appears to be necessary.
Page 70 PREV PAGE TOP OF DOC I also call upon the VA to give whistleblowers the protection they deserve and to hold those who retaliate against them severely responsible. Unless you send the message, it is just not going to get out there.
I can promise you this subcommittee is not going to lose interest in the issue, and there will be future hearings.
Thank you again.
This meeting is adjourned.
[Whereupon, at 12:55 p.m., the subcommittee was adjourned.]