ProPublica: Court hobbles VA firing spree that targeted whistleblowers

President Donald Trump often touts a law he signed to speed up firings at the Department of Veterans Affairs. He and other Republicans see the law as a model for weakening civil service protections across the federal government.

The administration’s case for the new law centered on Brian Hawkins. Hawkins was the director of the VA hospital in Washington when an internal investigation discovered safety risks for patients. The VA tried to fire Hawkins but got held up on appeal. Then-Secretary David Shulkin said Hawkins showed why “we need new accountability legislation and we need that now.” Once Congress passed the legislation, the VA used it to go after Hawkins a second time.

Now, almost two years later, the VA’s case against Hawkins has fallen apart. On Tuesday, the government said it would give Hawkins his job back rather than defend the statute in court.

While the administration tried to make Hawkins into a symbol of why it needed the legislation, court records tell a different story: of Trump appointees so eager to score political points that they ran roughshod over legal protections for civil servants.

“They couldn’t defend their actions in court,” Hawkins said in an interview. “The VA took away my rights, I had no say, my 25-year career was gone. It violated everything I tried to teach my family and tried to believe in myself: this country was founded on a Constitution, the Bill of Rights, equal opportunity for all.”

Hawkins argued that his firing was unconstitutional because the VA used a standard of proof that was too low. Since the government opted not to contest that claim, it could have repercussions for thousands of other VA employees who were fired under the accountability law, according to Jason Briefel, the executive director of the Senior Executives Association, which lobbies for high-ranking career officials.

“The passage of this law was a signature achievement for the president and many members of Congress,” said Briefel, who also works for the law firm that represented Hawkins. “If they were wrong and this was indeed unconstitutional, now they’re going to have to go figure out what to do with thousands of folks fired under this authority.”

VA spokesman Curt Cashour said the agency “has complete confidence” in the law but declined to comment on the Hawkins case. A White House spokesman didn’t respond to a request for comment.

House veterans committee chairman Mark Takano, a California Democrat, said he would hold hearings this summer to examine the VA’s implementation of the accountability law.

“This is another example of how VA has misconstrued and unfairly applied legislation once lauded as the Administration’s preferred method to root out corruption,” Takano said in a statement. “Instead of weeding out troubled leadership and incompetent supervisors, this law has been exploited and misused to target whistleblowers and employees.”

According to the government’s court filing, Hawkins will get back pay, but the VA could try to fire him again. The government now wants the judge to throw out Hawkins’ case as moot.

Many of the details in the litigation have been sealed for more than a year because the government considers the information protected by attorney-client privilege. But ProPublica uncovered the information from other documents and people involved.

Hawkins, 50, started working at the VA in 1992 cutting grass. He worked his way up through the ranks and in 2011 became director of the Washington hospital, overseeing a staff of 2,000 at the 200-bed facility three miles north of the Capitol. Under Hawkins’ charge, the hospital struggled with stocking medical supplies and filling leadership positions. In early 2017, Hawkins found out about problems in the logistics department and reported his concerns to the VA’s inspector general.

The inspector general’s office found dirty storage areas and supply shortages that were endangering patients. The inspector general’s report didn’t name Hawkins but suggested that even higher-ranking officials in the VA health system were aware the problems and had failed to fix them.

Shulkin was under pressure from Trump. As a candidate, Trump had campaigned on cracking down on errant VA employees, a rallying cry for conservative critics of the government-run health system. “You just need to start firing people,” Trump told Shulkin at a spring 2017 meeting with veterans groups, as reported in The Wall Street Journal. “Let them sue us. I don’t care if they sue us.”

The VA could have taken action against Hawkins based on the problems at the hospital he ran, but that would have required an investigation — and time. The Trump administration didn’t want to wait. Political appointees said they wanted to fire Hawkins “for any reason we can find,” according to a June 2017 email sent by Scott Foster, a senior official overseeing the staff responsible for investigating VA executives. According to the email, the staff investigators responded that there was “insufficient evidence.” (Foster declined to discuss personnel matters, citing privacy rules, but he agreed to tell his story.)

“We are setting ourselves up for slam-dunk due process fouls,” Foster said in the email, sent to his boss and the VA’s top lawyer. “We will lose this case on appeal, and in a very embarrassing way.”

The VA fired Hawkins anyway.

That same day, Foster was on a conference call where his boss, a political appointee named Peter O’Rourke, said he wanted 10 to 15 people who could be fired as soon as Trump signed the new accountability law, according to notes that Foster recorded later that month. Foster cautioned that the VA would still need to follow the legal process and act on evidence.

O’Rourke responded by moving to fire Foster. The stated reason, according to the written notice that O’Rourke gave to Foster, was that Foster had voiced concerns about the legality of how the agency was firing civil servants.

Foster knew that the law protected him from such explicit retaliation, but he wasn’t sure if that would matter.

“I was wondering if I was going to be caught up in a time in our country’s history when the people who ran the government did not necessarily feel compelled to follow the law,” Foster said.

O’Rourke, who later served as acting secretary and left the agency late last year, didn’t respond to phone messages.

Foster filed a complaint with the Office of Special Counsel, or OSC, an independent federal agency that investigates retaliation against whistleblowers. OSC blocked the VA from firing Foster.

OSC also received a complaint from Michael Culpepper, another senior official overseeing investigations of VA executives. Culpepper “witnessed VA leadership violate norms in seeking to terminate several senior level employees,” according to his lawyer, Mark Zaid. Culpepper became a whistleblower and suffered retaliation, Zaid said. Culpepper resigned in May 2017.

Based on the complaints from Foster and Culpepper, OSC moved to halt Hawkins’ removal. An administrative judge agreed to pause the firing for 45 days so that OSC could investigate further.

Shulkin seethed at the intervention. “No judge who has never run a hospital and never cared for our nation’s veterans will force me to put an employee back in a position when he allowed the facility to pose potential safety risks to our veterans,” he said in a press release.

Shulkin, who was forced out in March 2018, didn’t respond to a request for comment.

Rather than honor the 45-day pause, the VA said it would deploy the new accountability law that Trump had just signed. A Wall Street Journal editorial headlined “Can the VA Fire Anyone?” called the Hawkins case a critical test for the law’s powers. The order firing Hawkins was signed by Assistant Secretary for Congressional and Legislative Affairs Brooks Tucker, a political appointee who is outside the hospital system’s chain of command.

“The media circus that the secretary went on really made me feel less than human,” Hawkins said. “My children were laughed at and questioned by their friends. My neighbors stopped speaking to my family. It was a struggle to leave my home. I gained 30 pounds. I developed hypertension. I’ve been in counseling for stress and depression. I was unsure of how was going to provide for my family.”

Hawkins maintains that the Washington hospital had been on the upswing during his six-year tenure. When the inspector general’s office completed its review, it said Hawkins provided “ineffective leadership” but also faulted others above and below him. (A separate investigation found that Hawkins broke agency policy by sending sensitive information to a personal email account.)

Conditions at the hospital got worse after Hawkins left. The facility was designated “critical” last year and now ranks among the worst-performing hospitals in the entire VA system. The inventory problems still weren’t fixed — inspections found that some procedures had to be canceled because the hospital ran out of needed equipment.

“You’re using civil servants as political pawns to say, ‘OK, I fired them, therefore the problem is better,’ but a year or two years later, the logistics problem is still an issue,” Hawkins said. “It kills the efficiency of the organization, and then the ‘big bad VA doing bad things for veterans’ becomes a self-fulfilling prophecy.”

Cashour, the VA spokesman, said the Washington hospital is making “significant improvements” such as reducing wait times, hiring nurses and referring more patients to private providers. The latter was another Trump campaign promise.