U.S. OFFICE or SPICL-\L COUNSEL 1'7JO M ser..t, N.n:, Sime JOO w,....-.D.C %003"4D September 29, 201 7 The Honorable David J. Shulkin Secretary Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 Re: OSC File No. DI-17-4244 Dear Mr. Secretary: Pursuant to 5 U.S.C. § 1213(e)(3), the Office of Special Counsel (OSC) is referring to you for investigation a whistleblower disclosure alleging that employees at the Department of Veterans Affairs (VA), Edward Hines, Jr. VA Medical Center (Hines V AMC), Hines, Illinois, engaged in conduct that may constitute an abuse of authority. A report of your investigation is due to the Office of Special Counsel on November 28, 201 7. who consented to the release of her name, disclosed that a Hines V AMC police officer, abused his authority by arresting The allegation to be investigated is as follows: • Officer - improperly arrested - for unpaid parking tickets on VA property, notwithstanding the available information indicating that . - tickets were being held in abeyance. - is an education specialist at the Hines VAMC. Her duties include processing travel requests and education reimbursement forms for all Hines V AMC employees. She explained that in March 2016, Officer - approached her and inquired about a VA education rein1bursement program. He expressed interest in taking a class at Northwestern University and - provided him with documentation to apply for the Tuition Reimbursement Plan. ~ request was later approved and he received approximately $900 to attend the course. Several weeks later, Officer - asked - to alter his documentation from an education reimbursement to a travel event. Concerned that this request was improper, - spoke with Senior Education Specialist who also concluded that changing the type of reimbursement requested was impermissible .• - and advised Officer- that they would not alter his The Honorable David J. Shulkin September 29, 2017 Page 2 of 4 documentation. According to - Officer- became visibly frustrated and slammed the door as he exited her office. In July 2016, - received an e-mail from Officer~ that she had four outstanding VA parking tickets, totaling approximately~ advised Officer- that due to a 2015 bankruptcy proceeding, these tickets were stayed and that the VA was already a listed creditor. 1 According to between July and November 2016, she exchanged several e-mails with Officer to explain the situation, and even provided him with the contact information of her attorney for clarification. Nevertheless, Officer- ultimately issued - a summons for the parking tickets in October 2016, but sent the summons to an address where she had not resided for over 10 years. On November 28, 2016, Officer - came to office and advised her that he was "going to take her to federal prison." then contacted her bankruptcy attorney and provided Officer with her list of creditors. Officer - did not acknowledge the list, and instead, called Officer for assistance, who arrived a short time later. According to placed - under arrest and escorted her through th the way to his police vehicle. When they arrived at Officer vehicle, he double handcuffed - hands behind her back, using both his and Officer _ handcuffs. Officer another VA police officer within the vicinity who witnessed the arrest, noticed complaining of chest pain and shortness of breath. - explained that she has two chest implants because of a double mastectomy, but Officer refused to acknowledge her complaints. According to - Officer was very aggressive and when he placed her under arrest and escorted her to the police vehicle, he used so much force that it caused one of her implants to dislodge. Officer- then transported to the U.S. Federal District Court, Northern District of Illinois. Upon arrival, appeared visibly upset and in so much pain that a U.S. Marshall outside of the courthouse asked if she needed assistance .• - requested medical attention and was immediately transported by ambulance to a local hospital, where she was diagnosed with a chest wall injury that required overnight monitoring at the hospital.2 Finally, - asserted that Officer- never presented her with charging documents, warrants, or other legal documentation regarding the arrest. After she was released from the hospital, her case was dismissed after she negotiated a payment structure for the parking tickets with the prosecutor. - later returned to work and reported 1 See Exhibit 1 (list of creditors in - bankruptcy ~ s ). 2- reported that during her hospital stay, Officer- - appeared noticeably angry and made several comments regarding how staying in the hospital would only prolong her arrest and confinement. The Honorable David J. Shulkin September 29, 2017 Page 3 of 4 this matter to Equal Employment Opportunity Officer who told - to contact then-Associate Director exp ained that despite several attempts to discuss this matter with the facility never addressed this matter, and that Officer remains in his position as a police officer. ***** The Office of Special Counsel (OSC) is authorized by law to receive disclosures of information from federal employees alleging violations of law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. 5 U.S.C. § 1213(a) and (b). OSC does not have the authority to investigate a whistleblower's disclosure; rather, if OSC determines that there is a substantial likelihood that one of the aforementioned conditions exists, OSC is required to advise the appropriate agency head of my determination, and the agency head is required to conduct an investigation of the allegations and submit a written report. 5 U.S.C. § 1213(c) and (g). Upon receipt, OSC reviews the agency report to determine whether it contains all of the information required by statute and that the findings of the head of the agency appear to be reasonable. 5 U.S.C. § 1213(e)(2). OSC will determine that the agency's investigative findings and conclusions appear reasonable if they are credible, consistent, and complete based upon the facts in the disclosure, the agency report, and the comments offered by the whistleblower under 5 U.S.C. § 1213(e)(l). OSC has concluded that there is a substantial likelihood that the information the whistleblower provided to OSC discloses an abuse of authority. As previously stated, OSC is referring this information to you for an investigation of- allegations and a report of your findings due to this office on November 28, 2017. By law, this report should be reviewed and signed by you personally. Nevertheless, should you delegate your authority to review and sign the report to the Inspector General, or other agency officials, the delegation must be specifically stated and must include the authority to take the actions necessary under 5 U.S.C. § 1213(d)(5). The requirements of the report are set forth at 5 U.S.C. § 1213(c) and (d). A summary of section 1213(d) is enclosed. As a matter of policy, OSC also requires that your investigators interview _ at the beginning of the agency investigation when, as in this case, the whistleblower consents to the disclosure of his or her name. As the subject matter expert, - can provide additional information and an explanation of her allegations, thereby streamlining the agency investigation. Please note that where specific violations of law, rule, or regulation are identified, these references are not intended to be exclusive. Further, in some cases, whistleblowers who have made disclosures to OSC that are referred for investigation pursuant to 5 U.S.C. § 1213 also allege retaliation for whistleblowing once the agency is on notice of their claims. OSC urges you to take all appropriate measures to ensure that those reporting wrongdoing are protected from such The Honorable David J. Shu Ikin September 29, 2017 Page 4of 4 retaliation and from other prohibited personnel practices, including informing those charged with investigating- allegations that retaliation is unlawful and will not be tolerated. If your investigative team has any questions regarding the mandate under 5 U.S.C. § 1213, OSC attorneys are available to discuss OSC's statutory process and expectations for credible, consistent, and complete reports, as well as for general assistance. Please contact Catherine A. McMullen, chief, Disclosure Unit, at (202) 804-7088 to initiate this process. As required by 5 U.S.C. § 1213(e)(3), OSC will send copies of the report, along with any comments on the report from the whistleblower and any comments or recommendations from OSC, to the President and the appropriate oversight committees in the Senate and House of Representatives. Unless the report is classified or prohibited from release by law or by Executive Order requiring that information be kept secret in the interest of national defense or the conduct of foreign affairs, OSC will place a copy of the report in a public file in accordance with 5 U.S.C. § 1219(a). To prevent public disclosure of personally identifiable information (PU), OSC requests that you ensure that the report does not contain any sensitive PII, such as Social Security numbers, home addresses and phone numbers, personal e-mail addresses, dates and places of birth, personal financial information, and patient names. OSC does not consider names .and titles to be sensitive PIT requiring redaction. Agencies are requested not to redact such information in reports provided to OSC for the public file. Please refer to our file number in any correspondence on this matter. If you need further information, please contact Ms. McMullen. I am also available for any questions you may have. Enclosures cc: The Honorable Michael J. Missal, Inspector General Exhibit 1 UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION - /Debtor Bankruptcy Docket#: - - Judge: Bruce W. Black COMPLETE LIST OF CREDITORS - KEEP THIS FOREVERt READ THIS ENllRE SECTION: 1. If a creditor is missing from th is list, follow the instructions in your Green or Red Folder. · 2. Don't worry if balances have changed since you submitted your final list of creditors. Balances change all the time. 3. The bankruptcy court mails notification upon filing of your bankruptcy petition to all creditors and their agents. - Creditor Na,'!1e and Address II Account II and Conskieratlon For Claim !f"ii'w3) .... , .... ; Claim.Amount I 1 w 2 w 3 4 C n . Type of Debt: Unsecured Reason for Debt: Collecting !or Creditor - - Typ? of De b_t: Unsecured Reason for Debt: Credit Card or Credit Use 5 ' w . Account#: - - - -- - - - - - - -- Oates of Use: mo_ _/yr_ __ Type of Debt: Unsecured Reason fur Debt: P~1kiJ1!J li~E:!ls Ordinan~e Vi~l~!ion 6 wf - .I. - 7. Department of Veterans Affairs Attn : PO BOX 998002. Cleveland OH 44199 $1,000.00 Dates of Use: mo_ _/yr_ __ w - Account#: - -- - - -- - - - - - - -~YJ>~ of Debt: Unsecured Reason for Debt 8 - Type of Debt: UI\Secured Reason for Debt: Loan or Tuition for Education ·-- ... .. ·-· - 9 Oates of U~e: 2015-2016 10 11 Account#: - Type or Debt: Unsecured Dates of Use: 2015-2015 Reason f'or Oetl!: Loan or Tuition for Educatio·n w i -- - Type of Debt: Unsecured Reason for Debt: -, 12 w I - I j 13 ! Reason for Debt: Medical Debt ! PFG Client Record# 669753 Oate & rme the Repo1 was Run •. e12112015@ 8;<4:32AM Pi!ge 1 of2 Enclosure Requirements of 5 U.S.C. § 1213(d) Any report required under subsection (c) shall be reviewed and signed by the head of the agency 1 and shall include: (1) a summary of the information with respect to which the investigation was initiated; (2) a description of the conduct of the investigation; (3) a summary of any evidence obtained from the investigation; (4) a listing of any violation or apparent violation of law, rule, or regulation; and (5) a description of any action taken or planned as a result of the investigation, such as: (A) changes in agency rules, regulations or practices; (B) the restoration of any aggrieved employee; (C) disciplinary action against any employee; and (D) referral to the Attorney General of any evidence of criminal violation. In addition, we are interested in learning of any dollar savings, or projected savings, and any management initiatives that may result from this review. To prevent public disclosure of personally identifiable information (PII), OSC requests that you ensure that the report does not contain any sensitive PII, such as Social Security numbers, home addresses and phone numbers, personal e-mail addresses, dates and places of birth, and personal financial information. With the exception of patient names, OSC does not consider naines and titles to be sensitive PII requiring redaction. Agencies are requested not to redact such information in reports provided to OSC for inclusion in the public file. 1Should you decide to delegate authority to another official to review and sign the report, your delegation must be specifically stated. GUIDANCE FOR SUBMISSION OF AGENCY REPORT TO OFFICE OF SPECIAL COUNSEL (OSC) PURSUANT TO 5 USC§ 1213(c) The Special Counsel has determined that there is a substantial likelihood that information received by OSC discloses a violation of law, rule, or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; and/or a substantial and specific danger to public health or safety, and has referred the matter to the agency head. 5 USC§ 1213(c). The agency head is required to conduct an investigation with respect to the information and any related matters transmitted by the Special Counsel, and submit a written report setting forth the findings of the agency head. 5 USC§ 1213(c)(l)(A) and (B). By law, the report shall be reviewed and signed by the agency head (or their delegate) and shall include the information set out in 5 USC § 1213(d). The checklist below is intended to assist the agency in completing the report and to ensure against statutory deficiencies. 1. Did the agency submit the report within 60 days? 5 USC§ I213(c)(l)(B) a) If not, did the agency receive a written extension of time? (Extensions of time, no longer than 60 days per request, will be considered where an agency concretely evidences that it is conducting a good faith investigation that will require more time to successfully complete. Specific reasons for the extension of time must be included.) 2. Did the agency head (or their delegate) review and sign the report? 5 USC§ 1213(d) 3. Did the agency report include a summary of the information with respect to which the investigation was initiated? 5 USC § 1213(d)(l) a) Did the report set forth allegations submitted by the Special Counsel for investigation? b) Did the report summarize the material evidence relating to each of the allegations? c) Did the report set forth any related matters transmitted by the Special Counsel? d) Did the report summarize the material evidence relating to the related matters? 4. Did the agency report include a description of the conduct of the investigation? 5 USC § 1213 (d)(2) a) Was the whistleblower interviewed at the outset of the investigation? Guidance, page 2 b) Did the report identify the personn J who investigated the whistleblower s charge ? c) Did the report disclose whether or not witnesses were offered confidentiality for their responses? d) Did th report list witnesses interviewed, including the subjects of the investigation and witnesses uggested by the whistleblower? e) Did the report reference those witnesses who requested and were granted anonymity? f) Did the report disclose the methodology and scope of the investigation? g) Did the report state whether notice was provided for on-site investigations? h) Did the report reveal the areas of inquiry covered with each witness? i) Did the agency rely on any other investigative report as a substitute for investigation in direct response to the referral under 5 USC§ 1213(c)? If so, did the agency answer Question 4, (a) through (h) above in that report? 5. Did the report include a swnmary of any evidence obtained from the investigation? 5 USC§ 1213(d)(3) a) Did the report summarize all relevant and material evidence that the agency considered in making its conclusions on each of the allegations? 6. Did the agency report include a listing of any violation or apparent violation of any law, rule, or regulation? 5 USC§ 1213(d)(4) a) Did the report cite any law, rule, or regulation relevant to the whistleblower's allegations, whether or not the report concludes that the disclosure and evidence substantiates a violation? b) Did the report state whether or not the investigation revealed a violation of law, rule, or regulation? c) When conflicting evidence could lead to differing conclusions about a possible violation, did the report disclose which evidence was more credible and explain why? d) Did the report offer the full factual and legal basis for the conclusions on each element of each allegation? 7. Did the agency report include a description of any action taken or planned as a result of the investigation, such as: a) changes in agency rules, regulations, or practices; b) the restoration of any aggrieved employee; 2 Guidance, page 3 c) disciplinary action against any employee; and d) referral to the Attorney General of any evidence of a criminal violation? 5 USC §1213(d)(5)(A)-(D) Please note that upon receipt of the report, the Special Counsel shall review the report and determine whether the findings of the head of the agency appear reasonable, and whether the report of the agency contains the information required under 5 USC§ 1213(d) as set forth above. 8. Where applicable, did the report include any dollar savings, or projected savings, and any management initiatives that may result from this review? 9. Does the agency report include any personally identifiable information (PU), such as social security numbers, home addresses and telephone numbers, personal e-mail addresses, dates and places of birth, personal financial information, and patient names? (In order to prevent public disclosure of PII, OSC requests that you ensure that the report does not include this type of information.) 3
Department of Veterans Affairs | Hines, IL | 18-27 | Agency Report
Published by the Office of Special Counsel on 2018-07-12.
Below is a raw (and likely hideous) rendition of the original report. (PDF)