How Trump appointees used a 'whistleblower protection' law to actually target whistleblowers

How Trump appointees used a 'whistleblower protection' law to actually target whistleblowers
President Donald J. Trump participates in a bilateral meeting with Australian Prime Minister Scott Morrison Friday, Sept. 20, 2019, to the Oval Office of the White House. (Official White House Photo by Shealah Craighead)

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Political appointees at the Department of Veterans Affairs failed to follow a new law on disciplining employees and protecting whistleblowers, and instead used it to mount shoddy and biased investigations, according to the agency’s watchdog.

In a blistering report released Thursday, the VA’s inspector general said the department’s Office of Accountability and Whistleblower Protection investigated things it shouldn’t have, didn’t investigate things it was required to and bungled the investigations it did do. It also misspent funds. President Donald Trump created the office with an executive order in 2017, and Congress then codified it into law. Trump frequently points to it as one of his signature legislative accomplishments.

The findings confirm ProPublica’s reporting since 2018 that the law was being used for the opposite of its stated purpose. The whistleblower office “acted in ways that were inconsistent with its statutory authority while it simultaneously floundered in its mission to protect whistleblowers,” the report said.

While the law was supposed to hold senior leaders accountable, the inspector general found that only one top official has been fired, whereas it’s been used more than 8,000 times against lower-level employees. Some of those cases involved minor infractions such as arriving late.

Republicans have cited the law as a model for removing what they argue are excessive job protections for federal employees.

The VA said that it agreed with the report’s recommendations, and that it has already taken steps to resolve several of them. “This report largely focuses on [the office’s] operations under previous leaders who no longer work at VA,” agency press secretary Christina Mandreucci said in a statement.

Much of the mismanagement described in the report occurred while the office was being led by Peter O’Rourke, a Trump campaign loyalist who was promoted by the president to serve as the VA’s acting secretary. He is now the executive director of the Florida Republican Party, a position he received after Trump’s endorsement.

O’Rourke, the White House and the Florida GOP didn’t answer requests for comment.

In one instance described in the report, O’Rourke and his successor dismissed allegations of retaliation, harassment and discrimination against a fellow political appointee who golfed with O’Rourke.

O’Rourke personally reassigned the case from a career employee to a direct subordinate. He also talked with the subject of the investigation, Peter Shelby, while it was pending, according to the report. The investigation cleared Shelby. Shelby then made allegations against one of the whistleblowers who had complained against him, and O’Rourke’s office endorsed the allegations without ever taking testimony from the whistleblower.

Shelby told ProPublica the investigation wasn’t retaliatory because the whistleblower deserved to be disciplined. “The IG has been gunning for everybody in that place since they walked in the door,” he said. “They’re trying to spin the whole thing to make sure I’ve done something wrong, but I didn’t.”

In another incident, O’Rourke retaliated against one of his own employees in the accountability office, trying to fire him after he reported inappropriate interference in a disciplinary matter. That episode was first reported by ProPublica in May.

The office also investigated criminal matters that should have been referred to the inspector general, according to the report. And it investigated one of its own top officials even though that matter fell outside the office’s scope. The inspector general’s review partially substantiated the allegations against the official (who is not identified in the report), but he or she has faced no punishment.

The office also routinely routed complaints to the divisions whose leaders were the subjects of the allegations, opening the door for them to retaliate against the people who raised concerns, according to the report.

The report faults the office for lacking any written policies or adequate training, contributing to its “failure to consistently conduct investigations that were procedurally sound, accurate, thorough, and unbiased.” The investigations were marred by missing documents, inaccurate timelines and the failure to interview corroborating witnesses.

“In many instances, they focused only on finding evidence sufficient to substantiate the allegations without attempting to find potentially exculpatory or contradictory evidence,” the report said.

The office still lacks written policies, which are being drafted, according to the report.

Under short-lived tenure of O’Rourke’s successor, the office spent $2.6 million, or 15% of its budget, on two contracts with “tenuous” connections to its mission, according to the report. The report did not identify the vendors, but it said the director had a personal tie to some of the bidders, and he tried to cancel one of the contracts when it went to someone else.

The inspector general referred this to the Justice Department, which is still investigating, according to the report.

Sen. Jon Tester of Montana, the ranking Democrat on the Senate Veterans Affairs Committee and one of the lawmakers whose request prompted the inspector general’s investigation, said the report shows the administration is failing to fulfill the purpose of bipartisan legislation. “For an administration that claims to care about accountability, it’s shocking to see the reckless way in which they’ve run this office,” he said in a statement.

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