Department of Veterans Affairs: Actions Needed to Address Employee Misconduct Process and Ensure Accountability
Fast Facts
Employee misconduct at VA's medical facilities can have serious consequences for veterans. We looked at how VA deals with employee misconduct and found several opportunities for improvement. For example:
VA doesn't always maintain required files and documents for adjudication, suggesting that employees may not have received due process.
VA officials found guilty of misconduct sometimes received a lesser punishment than recommended or no punishment.
Whistleblowers were 10 times more likely than their peers to receive disciplinary action within a year of reporting misconduct.
We made recommendations to address these and other issues we found.
Photograph of a sign in front of the Department of Veterans Affairs building.
Highlights
What GAO Found
The Department of Veterans Affairs (VA) collects data related to employee misconduct and disciplinary actions, but fragmentation and data-reliability issues impede department-wide analysis of those data. VA maintains six information systems that include partial data related to employee misconduct. For example, VA's Personnel and Accounting Integrated Data system collects information on disciplinary actions that affect employee leave and pay, but the system does not collect information on other types of disciplinary actions. The system also does not collect information such as the offense or date of occurrence. GAO also identified six other information systems that various VA administrations and program offices use to collect specific information regarding their respective employees' misconduct and disciplinary actions. GAO's analysis of all 12 information systems found data-reliability issues—such as missing data, lack of identifiers, and lack of standardization among fields. Without collecting reliable misconduct and disciplinary action data on all cases department-wide, VA's reporting and decision making on misconduct are impaired.
VA inconsistently adhered to its guidance for documentation retention when adjudicating misconduct allegations, based on GAO's review of a generalizable sample of 544 out of 23,622 misconduct case files associated with employee disciplinary actions affecting employee pay. GAO estimates that VA would not be able to account for approximately 1,800 case files. Further, GAO estimates that approximately 3,600 of the files did not contain required documentation that employees were adequately informed of their rights during adjudication procedures—such as their entitlement to be represented by an attorney. The absence of files and associated documentation suggests that individuals may not have always received fair and reasonable due process as allegations of misconduct were adjudicated. Nevertheless, VA's Office of Human Resource Management does not regularly assess the extent to which files and documentation are retained consistently with applicable requirements.
VA did not consistently ensure that allegations of misconduct involving senior officials were reviewed according to investigative standards and these officials were held accountable. For example, based on a review of 23 cases of alleged misconduct by senior officials that the VA Office of Inspector General (OIG) referred to VA facility and program offices for additional investigation, GAO found VA frequently did not include sufficient documentation for its findings, or provide a timely response to the OIG. In addition, VA was unable to produce any documentation used to close 2 cases. Further, OIG policy does not require the OIG to verify the completeness of investigations, which would help ensure that facility and program offices had met the requirements for investigating allegations of misconduct. Regarding senior officials, VA did not always take necessary measures to ensure they were held accountable for substantiated misconduct. As the figure below shows, GAO found that the disciplinary action proposed was not taken for 5 of 17 senior officials with substantiated misconduct.
Action Proposed in Department of Veterans Affairs (VA) Office of Accountability Review's Legacy Referral Tracking List Compared with Final Action Taken
aAdverse action.
As a result of June 2017 legislation, a new office within VA—the Office of Accountability and Whistleblower Protection—will be responsible for receiving and investigating allegations of misconduct involving senior officials.
VA has procedures for investigating whistle-blower complaints, but the procedures allow the program office or facility where a whistle-blower has reported misconduct to conduct the investigation. According to the OIG, it has the option of investigating allegations of misconduct, or exercising a “right of first refusal” whereby it refers allegations of misconduct to the VA facility or program office where the allegation originated. VA does not have oversight measures to ensure that all referred allegations of misconduct are investigated by an entity outside the control of the facility or program office involved in the misconduct, to ensure independence. As a result, GAO found instances where managers investigated themselves for misconduct, presenting a conflict of interest.
Data and whistle-blower testimony indicate that retaliation may have occurred at VA. As the table below shows, individuals who filed a disclosure of misconduct with the Office of Special Counsel (OSC) received disciplinary action at a much higher rate than the peer average for the rest of VA in fiscal years 2010–2014.
Comparison of Adverse Disciplinary Action Taken for Nonanonymous Department of Veterans Affairs (VA) Employees Who Reported Wrongdoing and Those Who Did Not, 2010–2014
|
Employee category |
Percentage for whom adverse actions were taken |
||
|
Prior to disclosure |
Year of disclosure |
Year after disclosure |
|
|
Individuals who filed a disclosure |
2 |
10 |
8 |
|
Rest of VA |
1 |
1 |
1 |
Source: GAO analysis of VA data. | GAO-18-137
Additionally, GAO's interviews with six VA whistle-blowers who claim to have been retaliated against provided anecdotal evidence that retaliation may be occurring. These whistle-blowers alleged that managers in their chain of command took several untraceable actions to retaliate against the whistle-blowers, such as being denied access to computer equipment necessary to complete assignments.
Why GAO Did This Study
VA provides services and benefits to veterans through hospitals and other facilities nationwide. Misconduct by VA employees can have serious consequences for some veterans, including poor quality of care. GAO was asked to review employee misconduct across VA. This report reviews the extent to which VA (1) collects reliable information associated with employee misconduct and disciplinary actions, (2) adheres to documentation-retention procedures when adjudicating cases of employee misconduct, (3) ensures allegations of misconduct involving senior officials are reviewed according to VA investigative standards and these officials are held accountable, and (4) has procedures to investigate whistle-blower allegations of misconduct; and the extent to which (5) data and whistle-blower testimony indicate whether retaliation for disclosing misconduct occurs at VA.
GAO analyzed 12 information systems across VA to assess the reliability of misconduct data, examined a stratified random sample of 544 misconduct cases from 2009 through 2015, analyzed data and reviewed cases pertaining to senior officials involved in misconduct, reviewed procedures pertaining to whistle-blower investigations, and examined a nongeneralizable sample of whistle-blower disclosures from 2010 to 2014.
Recommendations
GAO makes numerous recommendations to VA to help enhance its ability to address misconduct issues (several of the recommendations are detailed on the following page).
GAO recommends, among other things, that the Secretary of Veterans Affairs
develop and implement guidance to collect complete and reliable misconduct and disciplinary-action data department-wide; such guidance should include direction and procedures on addressing blank fields, lack of personnel identifiers, and standardization among fields;
direct applicable facility and program offices to adhere to VA's policies regarding misconduct adjudication documentation;
direct the Office of Human Resource Management to routinely assess the extent to which misconduct-related files and documents are retained consistently with applicable requirements;
direct the Office of Accountability and Whistleblower Protection (OAWP) to review responses submitted by facility or program offices to ensure evidence produced in senior-official case referrals demonstrates that the required elements have been addressed;
direct OAWP to issue written guidance on how OAWP will verify whether appropriate disciplinary action has been implemented; and
develop procedures to ensure (1) whistle-blower investigations are reviewed by an official independent of and at least one level above the individual involved in the allegation, and (2) VA employees who report wrongdoing are treated fairly and protected against retaliation.
GAO also recommends, among other things, that the VA OIG
revise its policy and require verification of evidence produced in senior-official case referrals.
VA concurred with nine recommendations and partially concurred with five. In response, GAO modified three of the recommendations. The VA OIG concurred with one recommendation and partially concurred with the other. GAO continues to believe that both are warranted.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Veterans Affairs |
Priority Rec.
The Secretary of Veterans Affairs should develop and implement guidance to collect complete and reliable misconduct and associated disciplinary-action data department-wide, whether through a single information system, or multiple interoperable systems. Such guidance should include direction and procedures on addressing blank data fields, lack of personnel identifiers, and standardization among fields, and on accessibility. (Recommendation 1) |
On July 22, 2020 VA published policy that established the Office of Human Resource's Automated Labor and Employee Relations Tracker (ALERT-HR) information technology system which is used Department-wide to collect, monitor and report data related to labor and employee relations matters. ALERT-HR will be used by all Administrations and Staff Offices with labor and employee relations duties and responsibilities for case management of all corrective actions, such as written counseling, admonishments, reprimands, removals, among others. This system will ensure data consistency through standardized input forms with drop-down lists to ensure collection of the same set of data for every case. ALERT-HR will allow accurate and timely reporting to executives and Congress, insight to workloads and bottlenecks, consistent data across offices for trend analysis, and accountability and compliance through workflow automation and built in guidance. By developing ALERT-HR, VA will be better able to collect accurate misconduct data to efficiently analyze trends and develop corrective actions.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct applicable facility and program offices to adhere to VA's policies regarding employee misconduct adjudication documentation. (Recommendation 2) |
On September 11, 2018, the VA Acting Assistant Secretary of Human Resources and Administration distributed a memorandum reiterating the requirement for facility and program offices to adhere to VA Handbook 5021 regarding employee misconduct adjudication documentation. In addition, according to the VA, to assist staff in ensuring that VA personnel include information and documentation required by law, rule, regulation, VA policy, and/or VA Human Resources Management Letters in misconduct files, VA's office of Human Resources management developed checklists and sample letter templates. The checklists outline statutory, regulatory, and policy requirements for VA disciplinary, adverse, and major adverse actions. The sample letter templates for disciplinary/adverse actions include require employee notifications. On January 28, 2019, VA provided copies of the checklists to GAO and on March 22, 2019, VA provided copies of the letter templates.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct the Office of Human Resource Management (OHRM) to routinely assess the extent to which misconduct-related files and documents are retained consistently with VA's applicable documentation requirements. (Recommendation 3) |
In a September 11, 2018 memorandum, the Acting Assistant Secretary of Human Resources and Administration, instructed the Office of Human Resources Management to assess, during periodic Oversight and Effectiveness reviews, the extent to which misconduct-related files and documents are consistent with applicable requirements and properly retained. Additionally, the Office of Human Resources Management updated its checklist to include a review of these files. On January 28, 2019, VA provided copies of the checklists to GAO. On July 2, 2019, VA provided an update stating that since November 1, 2018, O&E assessed misconduct related files and documents at 14 Veterans Health Administration (VHA) facilities in conjunction with scheduled human capital management assessments. In addition, five VHA facilities will be reviewed during the 4th quarter of fiscal year 2019. To ensure files are consistent with statute, regulation, and VA policy, to include VA Handbook 5021, O&E uses checklists provided by Employee Relations & Performance Management Service (ER&PMS) to verify required documents and notices are maintained in the case files. On July 12, 2019, VA informed GAO that 130 files had been assessed since the implementation of periodic Oversight and Effectiveness reviews.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OHRM to assess whether human-resources personnel adhere to basic principles outlined in VA Handbook 5021 when informing employees of their rights during the adjudication process for alleged misconduct. (Recommendation 4) |
In a September 11, 2018 memorandum, the Acting Assistant Secretary of Human Resources and Administration, instructed the Office of Human Resources Management to assess, during periodic Oversight and Effectiveness reviews whether Human Resources personnel are adhering to basic principles outlined in VA Handbook 5021 when informing employees of their rights during the adjudication process for alleged misconduct. On January 28, 2019, VA provided an updated copy of the checklists used during periodic Oversight and Effectiveness Reviews.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should adhere to OPM and NARA guidance and establish a specific record-retention period for adverse action files. In doing so, the Secretary should direct applicable administration, facility, and program offices that have developed their own record-retention schedules to then adhere to the newly established record-retention period. (Recommendation 5) |
On November 27, 2018, The Department of Veterans Affairs, Acting Assistant Secretary for Human Resources and Administration/Operations, Security, and Preparedness sent a memorandum to VA Under Secretaries, Assistant Secretaries, and Other Key Officials that established a VA record retention period for case files and records relating to adverse actions. Under this guidance, adverse action files, including administrative grievances, disciplinary actions, and performance-based actions, must be maintained for seven years from the time the file is closed. According to the memorandum, the guidance was "effective immediately." All administration, facility, and program offices must adhere to this guidance and revise any standard operating procedures or guidance to reflect the seven year retention period by December 31, 2018.
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| Department of Veterans Affairs | The Department of Veterans Affairs (VA) Inspector General should revise its policy to include a requirement to verify whether evidence produced in senior-official case referrals demonstrates that the six elements required in VA Directive 0701 have been addressed. (Recommendation 6) |
On December 16, 2020, VA published revisions to Directive 0701. The revised directive requires all responses to hotline case referrals be signed in written or digital format by a responsible individual in the organization tasked by OIG for the review. Further, the directive assigns the Under Secretaries, Assistant Secretaries and other key officials as the designees to ensure that hotline complaint referrals are properly reviewed, documented and answered within specified timeframes. By revising Directive 0701 accordingly, VA will be better able to ensure that the six elements required in VA Directive 0701 have been addressed.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct the Office of Accountability and Whistleblower Protection (OAWP) to review responses submitted by facility or program offices to ensure evidence produced in senior-official case referrals demonstrates that the six elements required in VA Directive 0701 have been addressed. (Recommendation 7) |
On January 21, 2020, the Office of Accountability and Whistleblower Protection provided the Office of Accountability and Whistleblower Protection (OAWP) OAWP Investigations Standard Operating Procedures (SOP) which ensures that investigators and administrative investigations adhere to the Quality Standards for Investigations (QSI) established by the Council of the Inspectors General on Integrity and Efficiency (CIGIE). The SOP describes OAWP's authority relevant to receiving, reviewing, and referring or investigating senior leader misconduct. Among other things, the SOP provides quality standards for planning the investigations, evidence gathering, reports of investigation, and case management. According to OAWP, it also no longer refers senior leader cases of misconduct or whistle-blower retaliation for investigation to facility or program offices, in accordance with VA Directive 0500. Instead, OAWP directly investigates allegations from any individual alleging misconduct or poor performance by VA senior leaders, or whistle-blower retaliation by a VA supervisory employee. By developing the Investigations Standard Operating Procedures, VA can better ensure that evidence produced in senior-official case referrals include sufficient documentation for findings and are processed timely.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OAWP to issue written guidance on how OAWP will verify whether appropriate disciplinary action has been implemented for all substantiated misconduct by senior officials. (Recommendation 8) |
On January 21, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided the OAWP Compliance Standard Operating Procedures (SOP). The SOP describes the process OAWP's Compliance Division uses to confirm implementation of recommendations for disciplinary action resulting from investigations carried out by OAWP's Investigation Division. Among other things, this process involves the confirmation of implementation via SF-50, or other source, and the saving of documentation related to this process in a case management system. In addition, if the responsible official decides not to propose or take the disciplinary action recommended by OAWP within 60 calendar days from the date of recommendation, compliance staff will notify the responsible official to provide a detailed justification for not proposing or taking the disciplinary action recommended. By developing the Compliance Standard Operating Procedures, VA will be better able to monitor whether appropriate disciplinary action has been implemented for substantiated misconduct by senior officials.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OAWP to develop a process to ensure disciplinary actions proposed in response to findings of misconduct are recorded within appropriate information systems to maintain their relevance and value to management for making decisions and take steps to monitor whether the disciplinary actions are implemented. (Recommendation 9) |
On April 14, 2020, OAWP provided their system of records notice (SORN) for their new Matter Tracking System (MTS). OAWP's MTS allows records and information in the system to be used to record information related to complaints made to OAWP. The MTS is a matter management solution to assist in meeting the need for real-time reporting and tracking of incidents contemplated by the VA Accountability and Whistleblower Protection Act of 2017. The solution will allow OAWP to track workload and administrative functions, including the disposition of disciplinary actions. Specific information about each matter including the name of the disclosing party, name of the person of interest, and the allegations of improper conduct are recorded and forwarded to the appropriate entity of investigation for review or resolution. The information received is used to provide timely, responsive and accurate responses regarding the status of OAWP accountability matters. The information received is also used to provide a record of the matter's disposition as well as statistical data about the nature of complaints. By developing the MTS, VA will be better able to record disciplinary actions associated with substantiated misconduct and take steps to monitor whether disciplinary actions are implemented.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OAWP to issue written guidance on how OAWP will review the disposition of accountability actions for all substantiated misconduct cases involving senior officials resulting from investigations. (Recommendation 10) |
On January 21, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided the OAWP Compliance Standard Operating Procedures (SOP). The SOP describes the process OAWP's Compliance Division uses to confirm implementation of recommendations from investigations carried out by OAWP's Investigation Division. Among other things, this process involves the confirmation of implementation via SF-50, or other source, and the saving of documentation related to this process into a case management system. In addition, if the responsible official decides not to propose or take the disciplinary action recommended by OAWP within 60 calendar days from the date of recommendation, compliance staff will notify the responsible official and request that the official provide a detailed justification for not proposing or taking the disciplinary action recommended. By doing this, the agency has taken steps to ensure disciplinary actions are processed for substantiated misconduct cases involving senior officials.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should implement internal controls to ensure that proper adherence to separation-of-duty standards involving the removal of an employee are consistent with policy. (Recommendation 11) |
A September 11, 2018 memo from the Acting Assistant Secretary for Human Resources and Administration sent to Under Secretaries, Assistant Secretaries, and other key officials states that VA Handbook 5021 indicates that when adverse and major adverse actions are proposed, the decision on a proposed action will be made by an official who is in a higher position than the official who proposed the action, and that Human Resource personnel must ensure corrective actions comply with the delegated authorities for proposing and deciding actions. The memorandum also states that Human Resource Officers, Specialists, and Management Officials must ensure corrective actions comply with the delegated authorities for proposing and deciding actions as outlined in VA Handbook 5021. According to the VA, the Assistant Secretary for Human Resource and Administration will implement internal controls to ensure that separation-of-duty standards involving the removal of an employee are consistent with policy. The internal controls will be established and distributed no later than November 1, 2018. On January 28, 2019, VA stated that the memorandum along with revised file review checklists constitute the implementation of the internal control designed to ensure proper adherence to separation-of-duty standards involving the removal of an employee.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should develop oversight measures to ensure all investigations referred to facility and program offices are consistent with policy and reviewed by an official independent of and at least one level above the individual involved in the allegation. To ensure independence, referred allegations of misconduct should be investigated by an entity outside the control of the facility or program office involved in the misconduct. (Recommendation 12) |
On January 21, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided the OAWP Investigations Standard Operating Procedures (SOP) which ensures that investigators and administrative investigations adhere to the Quality Standards for Investigations (QSI) established by the Council of the Inspectors General on Integrity and Efficiency (CIGIE). The SOP describes OAWP's authority relevant to receiving, reviewing, and referring or investigating senior leader misconduct. Among other things, the SOP provides quality standards for planning the investigations, evidence gathering, reports of investigation, and case management. According to OAWP, it no longer refers senior leader cases of misconduct or whistle-blower retaliation for investigation to facility or program offices, in accordance with VA Directive 0500. The SOP also states that OAWP directly investigates allegations, from any individual, pertaining to misconduct or poor performance by VA senior leaders, or whistle-blower retaliation by a VA supervisory employee. In addition, the OAWP SOP also covers the process for a referral of a non-senior leader case, to the extent that matter meets the definition of a whistleblower disclosure. In these cases, when a referral is made for investigation, OAWP sends a referral memorandum informing VA administration or program office that OAWP approval is required for any delegation of an investigation to ensure there is no potential conflict, among other things. By doing this, the agency has taken steps to ensure independence of investigations that were referred to facility and program offices.
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| Department of Veterans Affairs | The VA Inspector General, in consultation with the Assistant Secretary of OAWP, should develop a process to ensure that OSC case numbers are linked to the investigative case number and final report. (Recommendation 13) |
On June 24, 2020, the VA provided GAO the guidance developed by the Office of Executive Secretary (EXECSEC) for handling OSC cases. The EXECSEC is responsible for receiving and assigning OSC cases and tracking all OSC referrals. The OIG's Office of the Counselor is the liaison between the OIG and OSC. The VA OIG developed a database to track all OSC referrals that have been accepted for investigation by the OIG. For OSC referrals that have been accepted for investigation by the OIG, the investigation reference number assigned by the OIG directorate undertaking the review as well as the OSC case number are recorded in the database. A copy of the final report submitted to the Office of the Executive Secretary for transmission to OSC is also saved in the database. Case files and reports are accessible by reference to either the OSC case number or the OIG directorate's investigation number. For those matters that the OIG does not accept for investigation, the Counselor's office also maintains and tracks relevant information. By taking these actions, VA has taken the necessary steps to ensure the OIG investigation number is associated with a particular OSC case number allowing relevant investigative and working files to be identified and accessed.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OAWP to develop a time frame for the completion of published guidance that would develop an internal process to monitor cases referred to facility and program offices. (Recommendation 14) |
On March 14, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided a copy of the OAWP Quality Standard Operating Procedures (SOP) that establish guidance for use by OAWP's Quality Division staff to ensure that a system of quality control for OAWP investigative operations is maintained consistent with Council of the Inspectors General on Integrity and Efficiency (CIGIE) Quality Standards for Investigations (QSI), among others. The SOP provides guidelines for conducting internal quality assurance reviews and quality reviews of completed investigations. The SOP for conducting quality reviews of completed investigations also includes criteria for reviewing the content of the investigative report, identifying gaps in evidence, reviewing testimonial evidence, and ensuring the report recommendations are supported by the evidence collected. By developing the Quality Standard Operating Procedures, VA will be better able to monitor OSC disclosure cases that have been referred to facility and program offices to ensure investigations address all allegations of misconduct.
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| Department of Veterans Affairs |
Priority Rec.
The Secretary of Veterans Affairs should ensure that employees who report wrongdoing are treated fairly and protected against retaliation. (Recommendation 15) |
On January 21, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided the OAWP Investigations Standard Operating Procedures which describes OAWP's authority relevant to receiving, reviewing, and referring or investigating senior leader misconduct. OAWP no longer refers senior leader cases of misconduct, or whistle-blower retaliation for investigation to facility or program offices. Instead, OAWP directly investigates allegations from any individual alleging misconduct or poor performance by VA senior leaders, or whistle-blower retaliation by a VA supervisory employee. In addition, OAWP officials stated that they worked with OSC and OIG to develop whistle-blower rights and protection training required under 38 U.S.C. ? 733. This training provides employees with, among other things, an explanation of the way in which they can make a whistle-blower disclosure, the right of employees to petition Congress, and information on what actions may be taken if whistle-blower retaliation occurs. Whistle-blower rights and whistle-blower and merit system protections training is mandated by the Secretary for all VA employees. Training for supervisory employees also includes a module that outlines ways to foster an environment where employees feel comfortable disclosing wrongdoing or alleging retaliation. In accordance with 38 U.S.C. ? 732, whistle-blower protection has also been mandated as a critical element for VA senior executives for the Fiscal Year 2020 appraisal period. By doing this, the agency has taken steps to ensure employees who report wrongdoing are protected against retaliation.
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| Department of Veterans Affairs | The Secretary of Veterans Affairs should direct OAWP to develop a process to inform employees of how reporting lines operate, how they are used, and how the information may be shared between the OSC, the OIG, OAWP, or VA facility and program offices when misconduct is reported. (Recommendation 16) |
On April 16, 2020, the Office of Accountability and Whistleblower Protection (OAWP) provided a document that describes the differences between OAWP, the U.S. Office of Special Counsel, VA's Office of Inspector General, and VA's Office of Resolution Management. The document will serve as guidance to any individual who may make a disclosure, file a complaint, or report wrongdoing. A clear description of what each entity investigates, as well as the possible referral of information to other entities within the VA is defined. This document was also made publicly available on the OAWP website. By doing this, the agency has taken steps to ensure that employees understand how information may be shared between VA offices when misconduct is reported.
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