Department of Veterans Affairs:

Actions Needed to Address Employee Misconduct Process and Ensure Accountability

GAO-18-137: Published: Jul 19, 2018. Publicly Released: Jul 19, 2018.

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Contact:

Kathy Larin
(202) 512-5045
larink@gao.gov

 

Office of Public Affairs
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youngc1@gao.gov

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.

Photograph of a sign in front of the Department of Veterans Affairs building.

Additional Materials:

Contact:

Kathy Larin
(202) 512-5045
larink@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

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

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.

What GAO Recommends

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.

For more information, contact Kathy Larin at (202) 512-5045 or larink@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Priority recommendation

    Comments: VA Office of Human Resources and Administration (HRA) is defining requirements for one or more information systems that will collect misconduct and associated disciplinary action data department-wide. Upon system implementation, a policy will be created that directs procedures on addressing blank data fields, lack of personnel identifiers, and standardization among fields, and accessibility. The target date for system implementation, dependent on approved funding and acquisition related requirements, is January 1, 2020.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  2. Status: Open

    Comments: 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, 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.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  3. Status: Open

    Comments: 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.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  4. Status: Open

    Comments: 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.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  5. Status: Closed - Implemented

    Comments: 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.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  6. Status: Open

    Comments: The VA Office of the Inspector General updated VA Directive 0701 to require a written or electronic signature from the person preparing the response that the specific requirements of the directive were met. The updated version of the directive was submitted to the Department, the concurrence was signed on November 16, 2018. As of January 2019, the VA OIG was working with the VA to finalize and publish the directive,

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  7. Status: Open

    Comments: According to the VA, 38 United States Code (U.S.C.) ? 323(c)(1)(F) places responsibility with the Office of Accountability and Whistleblower Protection (OAWP) regarding recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by the Inspector General of the Department, the Medical Inspector of the Department, the Special Counsel, and the Comptroller General of the United States, including the imposition of disciplinary actions and other corrective actions contained in such recommendations." Consequently, the process described in GAO's report to respond to OIG findings or results will be changed to require all such reports be submitted to OAWP, which will record, track, review, and confirm implementation of the recommendations. As part of this oversight process, OAWP will also be responsible for reviewing responses to recommendations from facilities or program offices to ensure that they address the six elements identified in VA Directive 0701. As of January 2019, the revised delegation and guidance is pending Department of Veterans Affairs concurrence. Publication of the permanent VA Directive is targeted for 2nd Quarter, FY19.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  8. Status: Open

    Comments: According to the VA, all substantiated misconduct by senior leaders in VA is handled by the VA Office of Accountability and Whistleblower Protection (OAWP) from intake, through investigation, to working with the proposing and deciding officials. This includes preparing the proposal and decision letters. The Proposing and Deciding Officials have independent authority to determine whether an action should be proposed or taken and the appropriate levels of discipline, if any, to impose. OAWP then works with the appropriate servicing personnel office to ensure the action decided upon is implemented. As of January 2019, revised delegation and guidance pertaining to how OAWP will verify whether appropriate disciplinary action has been implemented for all substantiated misconduct by senior officials is pending staff concurrence with the following: OAWP Leadership, OAWP Executive Director and Department of Veterans Affairs staff. Publication of permanent VA Directive targeted for 2nd Quarter, FY19.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  9. Status: Open

    Comments: According to the VA, OAWP maintains an internal management information system to record all phases of work processes and the outcomes for all disclosures of wrongdoing received by OAWP. Information regarding Senior Leader cases is maintained in greater detail. Both results (those from all disclosures and those specifically focused on Senior Leaders) are routinely used to inform VA leadership regarding accountability efforts involving Senior Leaders throughout the Department. The ad-hoc, VA-wide discipline tracking system using de-identified data was created in response to a specific request from Congressional oversight committees and was never designed as a robust management information system. As of January 2019, HRA is leading the efforts to develop and deploy a new electronic case management solution (eCase) for enterprise-wide employee relations cases. Enterprise-wide deployment is scheduled by October 1, 2019. OAWP is participating as part of the eCase workgroup and is working with the VA Office of Human Resources Administration to develop a system that will capture all types of disciplinary information..

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  10. Status: Open

    Comments: OAWP continues to perform the Advisory and Analysis role for investigations involving senior officials resulting in substantiated misconduct as described in its response to GAO's July 2019 report. As of January 2019, the release of written guidance pertaining to how OAWP will review the disposition of accountability actions for all substantiated misconduct cases involving senior officials resulting from investigations is pending approval. Publication of a permanent VA Directive is targeted for 2nd Quarter, FY19.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  11. Status: Open

    Comments: 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.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  12. Status: Open

    Comments: According to VA, Title 38 U.S.C. ? 323(c)(1)(F) places responsibility with OAWP regarding "recording, tracking, reviewing, and confirming implementation of recommendations from audits and investigations carried out by the Inspector General of the Department, the Medical Inspector of the Department, the Special Counsel, and the Comptroller General of the United States, including the imposition of disciplinary actions and other corrective actions contained in such recommendations."

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  13. Status: Open

    Comments: The OIG has taken steps to ensure that within its own files there is a mechanism to link OSC case numbers and OSC reports with the investigations of OSC referrals undertaken by the OIG. The OIG Office of the Counselor has developed a SharePoint database to track all OSC referrals and the OIG's disposition of such referrals (i.e., whether accepted for investigation or declined). For OSC referrals that have been accepted for investigation by the OIG the SharePoint database records the investigation reference number assigned by the OIG directorate undertaking the review as well as the OSC case number. A copy of the final report submitted to the Office of the Executive Secretary for transmission to OSC is also saved in the database and is accessible by reference to either the OSC case number or the OIG directorate's investigation number. As such, the SharePoint database can also be used to identify the directorate investigation number associated with a particular OSC case number, which can then be used to query the directorate's databases to obtain relevant investigative and working files. Given the nature of OSC referrals and the processes for initiating investigations, it is unlikely that the OIG and OAWP would ever investigate the same OSC referral or need to coordinate the investigation of such a referral, and any investigation and reporting of such matters is handled separately. Therefore a process to link OSC case numbers to their respective investigation numbers is unnecessary. The OIG is currently conducting an oversight review of OAWP's operations and will assess OAWP's process for linking OSC numbers to its investigative case files and reports to ensure that that process is effective, and will recommend any necessary changes to this process as appropriate.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  14. Status: Open

    Comments: Interim administrative guidance regarding cases referred to facility and program offices was last updated June 2018. Several management reports have been developed internally to OAWP to monitor cases referred to facilities and staff offices. Written standard operating procedures for case management within OAWP will be reviewed and, as necessary and updated in the 2nd Quarter, FY19.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

  15. Status: Open

    Priority recommendation

    Comments: The process and procedures for reporting allegations of wrongdoing or retaliation to OSC are posted at every VA facility. OAWP is also responsible for receiving and, in certain instances, investigating allegations of whistleblower retaliation. Additionally, whistleblower protections are written into 38 U.S.C. ? 714, one of the authorities that VA uses to discipline employees. See 38 U.S.C. ? 714(e). OAWP and OSC have developed a functional process to ensure those protections are implemented. Title 38 U.S.C. ? 714(e) prohibits VA from effecting an action under that section when the employee against whom the action is proposed has alleged that they either (1) are seeking corrective action with OSC for an alleged prohibited personnel practice or (2) have a disclosure pending with OAWP. The Secretary of VA has delegated authority to the Executive Director, OAWP, to hold individual personnel actions if the action appears motivated by whistleblower retaliation. OAWP has hired two Whistleblower Program Specialists specifically to increase awareness of whistleblower protections and work with individual disclosing employees to ensure they are treated fairly and protected from retaliation for their disclosures.

    Recommendation: The Secretary of Veterans Affairs should ensure that employees who report wrongdoing are treated fairly and protected against retaliation. (Recommendation 15)

    Agency Affected: Department of Veterans Affairs

  16. Status: Open

    Comments: As part of Public Law 115-41, the VA Accountability and Whistleblower Protection Act of 2017, the Department is required to provide whistleblower training to all employees on a biennial basis (codified in 38 U.S.C. ? 733). The training will include the reporting lines for disclosures of wrongdoing, the manner in which disclosures flow once they are made, how information is shared among the whistleblower entities and what protections exists for those who disclose wrongdoing. The required training was expected to be released by December 31, 2018. As of January 2019, release of required training is pending approval.

    Recommendation: 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)

    Agency Affected: Department of Veterans Affairs

 

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