Special Counsel Finds VA Misconduct Investigation Flawed

On March 4, the head of the U.S. Office of Special Counsel (OSC) Henry J. Kerner sent a letter to President Biden about a Department of Veterans Affairs (VA) investigation that was conducted regarding whistleblower disclosures of misconduct and wrongdoing at a VA medical center. Kerner’s letter states that the VA investigation’s findings “evince a willingness to resolve issues in favor of the agency, despite significant evidence to the contrary and a reluctance to conduct further review to resolve unanswered and potentially troubling questions.” 

The four whistleblowers’ complaints centered around the former chief of anesthesia at the White River Junction VA Medical Center in White River, Vermont. The whistleblowers alleged that this individual “engaged in serious professional misconduct, including the physical assault of nursing staff, falling asleep while on duty, misuse of agency IT resources, and aggressive intervention in a surgical case that caused serious injury to a patient,” according to Kerner’s letter.

The VA’s investigation detailed the five allegations that the whistleblowers made about the individual. These include claims that the person used their personal mobile device to stream video content “in the operating room during a procedure” on one occasion and in a separate instance struck one of the whistleblowers “in a manner that was similar to incidents alleged by other whistleblowers.” Overall, the VA “found no violations of VA and VHA [Veterans Health Administration] policy, and do not note that a substantial and specific danger to public health or safety exists at White River Junction.” 

Kerner’s letter to President Biden tackles several of the whistleblowers’ complaints and explains where he believes the VA investigation failed to adequately pursue and research said complaints. For example, Kerner points out that the VA investigation did mention a June 2018 incident in which the individual struck one of the whistleblowers. However, Kerner states the investigation “failed to acknowledge that this incident was so serious that the VA police were involved and that four employees who witnessed the event provided official statements to the police.”

Kerner also references a comment that a VA spokesperson made regarding a July 2019 article in The Boston Globe. The article detailed one of the whistleblowers’ allegations that the individual had struck the chief nurse anesthetist Christine Murphy. According to a March 4 article from The Boston Globe, a VA spokesman said that the allegation was “blatantly dishonest” and “disrespectful to actual assault victims, which Murphy is clearly not.” In his letter, Kerner deems the spokesman’s comments “distasteful” and “an appalling attack on a VA employee who was struck by a superior while appropriately discharging her duties, then followed appropriate reporting procedures.” Kerner notes that in a supplemental report, the VA said they “were not aware of this press release” and therefore unable to comment on the statement. However, the whistleblowers later “provided additional information indicating that this press statement was not only approved, but was also drafted by, officials at high levels of the agency,” the letter states.

Among other points, Kerner also takes issue with the agency’s finding that they could not substantiate the allegation that the individual “routinely fell asleep while on duty.” In his letter, he states that this finding “is inconsistent with testimony provided by three interviewees” who observed him either “definitely sleeping” or sitting in his office with his “eyes closed.” 

In closing, Kerner elaborates on the whistleblowers’ allegations and expresses admiration for the whistleblowers who brought this matter forward. “Finally, I strongly commend the whistleblowers for their persistence in this matter and their willingness to challenge an agency culture that appears to shield senior officials from accountability,” Kerner writes in the letter. He informs President Biden that the letter has been sent to the Chairs and Ranking Members of the Senate and House Committees on Veterans’ Affairs. Kerner also “filed redacted copies of these documents and the redacted referral letter in our public file,” which is available on the OSC website.

The VA has a recent history of whistleblower retaliation and intimidation. The VA Office of Accountability and Whistleblower Protection (OAWP) was established in 2017 to improve the VA’s ability to hold employees accountable and enhance protections for whistleblowers. However, an October 2019 report released by the VA’s Office of Inspector General (OIG) details how the OAWP has failed to protect whistleblowers and has even targeted them.

Read Kerner’s letter to President Biden here. 

Read the OSC press release about Kerner’s letter. 

View the VA’s original investigation document here.

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