[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
EVALUATING THE U.S. DEPARTMENT OF
VETERANS AFFAIRS OFFICE OF GENERAL COUNSEL
=======================================================================
HEARING
before the
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
of the
COMMITTEE ON VETERANS' AFFAIRS
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
JUNE 30, 2010
__________
Serial No. 111-88
__________
Printed for the use of the Committee on Veterans' Affairs
______
U.S. GOVERNMENT PRINTING OFFICE
58-055 WASHINGTON : 2010
___________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer
Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or
866-512-1800 (toll-free). E-mail, [email protected].
COMMITTEE ON VETERANS' AFFAIRS
BOB FILNER, California, Chairman
CORRINE BROWN, Florida STEVE BUYER, Indiana, Ranking
VIC SNYDER, Arkansas CLIFF STEARNS, Florida
MICHAEL H. MICHAUD, Maine JERRY MORAN, Kansas
STEPHANIE HERSETH SANDLIN, South HENRY E. BROWN, Jr., South
Dakota Carolina
HARRY E. MITCHELL, Arizona JEFF MILLER, Florida
JOHN J. HALL, New York JOHN BOOZMAN, Arkansas
DEBORAH L. HALVORSON, Illinois BRIAN P. BILBRAY, California
THOMAS S.P. PERRIELLO, Virginia DOUG LAMBORN, Colorado
HARRY TEAGUE, New Mexico GUS M. BILIRAKIS, Florida
CIRO D. RODRIGUEZ, Texas VERN BUCHANAN, Florida
JOE DONNELLY, Indiana DAVID P. ROE, Tennessee
JERRY McNERNEY, California
ZACHARY T. SPACE, Ohio
TIMOTHY J. WALZ, Minnesota
JOHN H. ADLER, New Jersey
ANN KIRKPATRICK, Arizona
GLENN C. NYE, Virginia
Malcom A. Shorter, Staff Director
SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS
HARRY E. MITCHELL, Arizona, Chairman
ZACHARY T. SPACE, Ohio DAVID P. ROE, Tennessee, Ranking
TIMOTHY J. WALZ, Minnesota CLIFF STEARNS, Florida
JOHN H. ADLER, New Jersey BRIAN P. BILBRAY, California
JOHN J. HALL, New York
Pursuant to clause 2(e)(4) of Rule XI of the Rules of the House, public
hearing records of the Committee on Veterans' Affairs are also
published in electronic form. The printed hearing record remains the
official version. Because electronic submissions are used to prepare
both printed and electronic versions of the hearing record, the process
of converting between various electronic formats may introduce
unintentional errors or omissions. Such occurrences are inherent in the
current publication process and should diminish as the process is
further refined.
C O N T E N T S
__________
June 30, 2010
Page
Evaluating the U.S. Department of Veterans Affairs Office of
General Counsel................................................ 1
OPENING STATEMENTS
Chairman Harry E. Mitchell....................................... 1
Prepared statement of Chairman Mitchell...................... 17
Hon. David P. Roe, Ranking Republican Member..................... 2
Prepared statement of Congressman Roe........................ 17
WITNESSES
U.S. Department of Veterans Affairs, Hon. Will A. Gunn, General
Counsel........................................................ 10
Prepared statement of Mr. Gunn............................... 25
______
Tully, Matthew B., Esq., Founding Partner, Tully Rinckey PLLC,
Albany, NY..................................................... 3
Prepared statement of Mr. Tully.............................. 18
MATERIAL SUBMITTED FOR THE RECORD
Followup Information and Post-Hearing Questions and Responses for
the Record:
U.S. Department of Veterans Affairs 2009 and 2010 Employee
Survey and Response Averages for the Office of General
Counsel.................................................... 30
Hon. Harry E. Mitchell, Chairman, Subcommittee on Oversight
and Investigations, to Hon. Eric K. Shinseki, Secretary,
U.S. Department of Veterans, letter dated July 30, 2010,
and VA responses........................................... 42
EVALUATING THE U.S. DEPARTMENT OF
VETERANS AFFAIRS OFFICE OF
GENERAL COUNSEL
----------
WEDNESDAY, JUNE 30, 2010
U.S. House of Representatives,
Committee on Veterans' Affairs,
Subcommittee on Oversight and Investigations,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 334, Cannon House Office Building, Hon. Harry E. Mitchell
[Chairman of the Subcommittee] presiding.
Present: Representatives Mitchell, Adler, Roe, and Bilbray.
OPENING STATEMENT OF CHAIRMAN MITCHELL
Mr. Mitchell. Good morning, and welcome to the Veterans'
Affairs Subcommittee on Oversight and Investigations' hearing
on Evaluating the U.S. Department of Veterans Affairs Office of
General Counsel.
And this meeting will come to order. This is June 30th,
2010.
I ask unanimous consent that all Members have 5 legislative
days to revise and extend their remarks and that statements may
be entered into the record. Hearing no objection, so ordered.
Each day, the U.S. Department of Veterans Affairs (VA)
executes laws, regulations, and policies that have a profound
effect on how the Department conducts its business and assists
our Nation's veterans.
The General Counsel serves as the VA's Chief Legal Officer
as the Office provides legal advice to the Secretary and all
organizational components of the Department. It is no secret
that the VA's General Counsel or OGC plays a critical role in
the decision-making and oversight of the VA.
The OGC is a unique and complex office within the VA and
its full range of responsibilities including legal, litigation,
legislative, and regulatory activities is distributed among
seven professional group staffs, each headed by an Assistant
General Counsel.
Each of these groups has the expertise in specific subject
areas and is responsible for providing legal advice to program
officials, reviewing proposed regulations and directives, and
handling litigation involving VA programs.
Additionally, the OGC operates 22 field offices which
comprise almost two-thirds of OGC's workforce. With the General
Counsel's widespread workforce, the OGC must promote
consistency and uniformity of its recommendations that lead to
executive decisions that directly impact millions of veterans.
We have heard many times that the OGC has repeatedly used
time extensions from the court in order to keep pace with their
workload. However, their workload is so great that it continues
to remain an ongoing issue.
Additionally, we have too often heard from various
Department entities that documents crucial to this
Subcommittee's work are tied up with the General Counsel's
Office or that they are restricted by the OGC for release.
Though OGC insists that the oversight responsibilities of
Congress deserve respect, there is often at times a tension
between the oversight responsibility and the Agency's needs to
protect certain predecisional information from disclosure out
of concern that it could have a chilling impact on the free and
open internal discussion and debate leading to the provision of
advice needed by Agency decision-makers.
As the VA OGC deals with these challenges, they must still
continue to give timely and balanced legal recommendations that
will benefit the needs of our veterans and the Department of
Veterans Affairs.
Determining an objective standard to evaluate a subjective
trait is a challenge. Nonetheless, the General Counsel needs to
bring reform to the VA's Office of General Counsel.
I look forward to hearing from the General Counsel the
challenges the office is facing as well as solutions that are
being implemented to correct long-standing issues within the
office.
[The prepared statement of Chairman Mitchell appears on p.
17.]
Mr. Mitchell. And before I recognize the Ranking Republican
Member for his remarks, I would like to swear in our witnesses.
I ask that all witnesses stand and please raise their right
hand from both panels.
[Witnesses sworn.]
Mr. Mitchell. Thank you.
Now I would like to recognize Dr. Roe for opening remarks.
OPENING STATEMENT OF HON. DAVID P. ROE, RANKING REPUBLICAN
MEMBER
Mr. Roe. Thank you, Mr. Chairman.
According to the VA Web site, the mission of the VA Office
of General Counsel is to identify and meet the legal needs of
the Department of Veterans Affairs. Its primary objective is to
ensure the just and faithful execution of the laws,
regulations, and policies that the Secretary has responsibility
for administering and by doing so, enable a Department to
accomplish its mission of service to our Nation's veterans.
In recent years, Congress has increased the budget
allocation to the Office of General Counsel to assist them in
meeting this mission. With the current 9.2 percent budget
increase for fiscal year 2010 and the requested 9.6 percent
increase for fiscal year 2011, it is appropriate to call this
hearing to review the work of the Office of General Counsel and
to make certain that the product produced by that office is
providing the best benefit to our Nation's veterans and the
American taxpayer.
Over the past several years, this Committee has reviewed a
number of contracting issues where it was apparent that the
guidance provided by the VA General Counsel was insufficient,
inaccurate, or lacking.
Recent VA Office of Inspector General (OIG) reports on
contracting have shown deficiencies within the Office of
General Counsel with respect to supporting contract management.
I am interested in hearing from the General Counsel on how
its resources have been allocated to improve contract
management at the Department.
I also want to know if the General Counsel plans to improve
the relations between the Contracting Officers and the Regional
General Counsel so that they actively seek their advice on
major contract awards prior to an award being granted.
Does the General Counsel perform pre- and post-award
contract reviews on all contracts?
I am also interested and concerned about delays we
frequently hear about during meetings on the concurrence
process for directives issued by the Veterans Health
Administration.
Often we are told that a directive is being held up by the
General Counsel's Office. These delays in providing legal
opinions can lead to delays in updated treatment information
being sent to the VISNs (Veterans Integrated Service Networks)
and medical facilities and may cause problems with patient
care.
The bottom line here is that we make certain that the
resources Congress provides to VA are being allocated properly
in order to provide the most benefit for the veterans and the
American public at the best possible value.
Given the current track record of the General Counsel in
contracting matters, I am uncertain if this is the case.
Mr. Chairman, thank you for holding this and I yield back
my time.
[The prepared statement of Congressman Roe appears on p.
17.]
Mr. Mitchell. Thank you.
Mr. Bilbray.
Mr. Bilbray. I have no opening statement, Mr. Chairman.
Mr. Mitchell. Thank you.
At this time, I would like to welcome panel one to the
witness table. Joining us on our first panel is Matthew Tully,
Founding Partner of Tully Rinckey, PLLC.
I ask that all witnesses from both panels stay within 5
minutes for their opening remarks. Your complete statements
will be made part of the hearing record.
And I also would like to let everybody know that votes may
be called at any time, so we may have to go vote, and come
back.
Thank you.
Mr. Tully.
STATEMENT OF MATTHEW B. TULLY, ESQ., FOUNDING PARTNER, TULLY
RINCKEY PLLC, ALBANY, NY
Mr. Tully. Thank you.
Chairman Mitchell, Ranking Member Roe, and Members of the
Subcommittee, on behalf of the Tully Rinckey Law Firm and our
Department of Veterans Affairs' employee clients, I would like
to thank you for the opportunity to present my evaluation of
the VA Office of General Counsel.
As the Founding Partner of a law firm that deals
extensively with the VA OGC and its Regional Offices on
employment law issues, the matter of today's hearing is of
particular importance to me.
Seventy-five years ago, the Supreme Court issued an opinion
implying that government attorneys must practice to a higher
standard of ethics than private attorneys. Unfortunately, my
fellow employment law attorneys and I have witnessed violations
of the ethical standards for government lawyers laid out by the
Supreme Court and various Bar associations, including the
tendency of VA lawyers to treat managers like private clients,
zealously representing them without any concern for the person
aggrieved in an employment action.
For example, a fellow attorney had witnesses privately
badgered about their testimony by a VA lawyer prior to a
hearing. A VA lawyer threatened disciplinary action against VA
employee witnesses if their testimony did not conform to the
Agency's desires.
In my firm's dealings with the VA Office of General
Counsel, VA lawyers have utilized numerous litigation tactics
that would have made the lawyers for BP',
AIG', or Enron' proud.
In one case earlier this year, our client was demoted based
on charges of misconduct and our firm appealed the VA decision
to the Merit Systems Protection Board (MSPB).
The VA lawyer in this case failed to respond to our
discovery requests and even our motion to compel discovery.
This unprofessional conduct translated into greater financial
cost for our client.
Due to the VA's tactics on employment law matters, VA
employees are often denied quality legal representation because
law firms like mine that handle Federal-sector employment law
issues avoid accepting VA cases because of the legal and
financial burdens of working with the VA lawyers or
alternatively charge VA clients higher initial retainers.
My firm has represented many VA employees who enforce their
legal rights pursuant to the Uniformed Services Employment or
Reemployment Rights Act of 1994, also known as USERRA.
In 2003, the Court of Appeals for the Federal Circuit found
that Federal agencies improperly charged members of the
National Guard and Reserve military leave for non-workdays. In
order to remedy these wrongs, hundreds of VA employees who had
been improperly charged military leave were able to file claims
with the Merit Systems Protection Board in order to recover
lost benefits.
These claims often require the assistance of employment law
attorneys like myself due to the difficulty in obtaining
evidence needed to win the case. It has been my experience in
these cases that VA lawyers often maliciously extend the legal
process, causing VA employees to incur further financial loss
and legal stress.
By exhausting the litigation process until the day before
or even hours before the actual hearing on the merits, VA
lawyers force legal bills to increase.
More striking, after some initial stonewalling, the VA
ultimately provided the veteran with the relief originally
requested minus attorneys' fees and litigation costs. This
strategy known as mooting means the VA avoids paying attorneys'
fees despite the clear use of stalling tactics. This is both
costly and taxing to the VA employee, the law firms that
represent these employees, as well as the VA whose resources
are diverted from complying with the laws that protect veterans
to irrelevant legal strategizing.
This tactic serves no legitimate purpose but to discourage
attorneys like myself from taking these cases on behalf of VA
employees.
For example, in one case, the VA restored to our client
shortly before a hearing 34 days of annual leave. However, the
VA lawyer specifically stated in writing that if our client
elected to proceed with the claim through the MSPB as allowed
by law and requested attorneys' fees, the VA would ``resist any
petition for the same for the reason that the appeal is
unnecessary, needlessly confrontational, and a wasteful method
of resolving this dispute.''
This clear retaliation against our client for exercising
his lawful right had a chilling impact on law firms who
represented VA employees, as well as other VA employees who
became afraid to file legal proceedings to recover damages from
the VA's unlawful employment practices because of the costs
involved in such actions.
In many of the claims that did get filed with the MSPB,
legal costs substantially outweighed the payment returned to
the employee for the wrongs they suffered due to the outrageous
legal tactics of the VA's lawyers.
In order to alter the current course of the VA Office of
General Counsel, I believe they should be held to the same or
similar standard and scrutiny currently followed by the U.S.
Department of Justice (DoJ). The Department of Justice Office
of Professional Responsibility reports directly to the Attorney
General and investigates allegations of misconduct concerning
DoJ attorneys.
This would both deter VA lawyers from acting unethically
and give the Department as a whole a newfound legitimacy. By
doing so, the VA Office of General Counsel would become a model
for ethical legal practices across all Federal agencies.
As a service-disabled veteran of the Iraq War who was
active in providing pro bono legal services in the compensation
and pen arena, I can also tell you that having an independent
Office of Professional Responsibility would be helpful given
the VA OGC's role of approving opposing counsel's lawful right
to appear on behalf of veterans during the comp and pen
process.
This accreditation of opposing counsel is ripe for abuse or
at the very least the appearance of abuse and an Office of
Professional Responsibility would help increase the oversight
in this important process.
I hope that I have provided valuable insight to this
Committee and I hope it brings about positive change.
[The prepared statement of Mr. Tully appears on p. 18.]
Mr. Mitchell. Thank you.
In your testimony, you discuss the OGC's lack of concern
for the person aggrieved and employment action is in
contravention of ethical duties required of attorneys.
Can you speak more about the ethical duties required of
attorneys in the VA and how VA fails to meet the standard?
Mr. Tully. Absolutely, Mr. Chairman.
The VA attorneys have an obligation not to the manager that
is involved in the employment dispute but to the taxpayers and
to the government as a whole.
I am a legal mercenary. I go to the highest bidder and I do
my best to protect the people that retain me.
The VA attorneys do very similar things, but that is not
their job. Their job is to protect the taxpayers. Their job is
to make sure justice is done. And routinely in these Equal
Employment Opportunity Commission (EEOC) cases in particular,
they spend a great deal of time trying to protect the manager
that allegedly and has been often proven to have engaged in
unlawful conduct versus doing what is right for the person that
was subjected to injustice.
Mr. Mitchell. Again, in your statement, you discuss
instances of OGC's engaging in unnecessary legal discovery
requests with private counsel and refusing to submit discovery
despite legal requests and failing to adhere to key legal
deadlines.
Are there any penalties that the VA attorneys face for not
complying with these legal requirements and, secondly, what
penalties would attorneys in the private practice face if they
did the same thing?
Mr. Tully. Yes. There are motions to compel, but there are
no financial penalties that could be imposed on the Agency.
There could be sanctions in the case.
So, for example, if I was a VA attorney and I did not meet
the discovery deadline, some of that information that would
have been relevant in discovery could be excluded. But the EEOC
and the MSPB do not have the authority to impose financial
sanctions.
If this was in Federal District Court and I did that, I
would be subjected to disciplinary action ranging from
disbarment, suspension, as well as financial liability.
Mr. Mitchell. But not if you were working with the
government or OGC?
Mr. Tully. Not before an administrative agency, no.
Mr. Mitchell. Why do you think unprofessional conduct by
the VA attorneys goes unchecked and what could the General
Counsel for the VA do about this?
Mr. Tully. Having spoken with my colleagues at the National
Employment Lawyers Association at a recent convention about
this, the problems seem to have occurred in the late 1990s,
early 2000 before 9/11 when the VA Office of General Counsel
had presidential appointees that were trying to instill a
private law firm mentality into the Administration.
And many of the things that they did were very favorable,
but this aspect of zealously representing a client to the point
of exceeding the ethical bounds is unfortunately one of the
things that they did bring in that I as a private attorney can
do. As long as I stay within ethical bounds, I can zealously
represent my client whether or not they are right or wrong. The
VA has to protect the person who is aggrieved.
What I think the Office of General Counsel can do and
specifically Colonel Gunn, and I believe he is trying to do
that, is instill integrity amongst the career employees within
the VA OGC. And he has an upward battle because this is years,
decades of this type of mentality going out there.
And it has worked to some degree. Many VA employees cannot
find quality legal representation, which keeps the employment
law complaints down or the ones that are filed are filed pro se
and there is a much higher loss rate when there is a pro se
person versus somebody represented by myself or one of my
colleagues in my law firm.
Mr. Mitchell. And one last question. Your testimony
describes mooting.
Mr. Tully. Mooting.
Mr. Mitchell. And how the VA employs these filing
techniques throughout the case. Can you explain what mooting is
and how it adversely affects veterans and how the General
Counsel is in the best position to remedy this?
Mr. Tully. Absolutely. The General Counsel, previous
General Counsel, I believe in 2007, issued a directive that in
these USERRA claims involving Butterbaugh that the cases are to
be immediately mooted upon presenting of evidence.
Under the way the current USERRA law is, you do not get
attorneys' fees unless there is an adjudication on the merits.
So until that MSPB Judge smacks the hammer down and says, VA
employee A, you are awarded, you know, $1,000 or $2,000, the
client could be stuck with attorneys' fees.
So we actively obtained the records needed to establish the
case. Part of the discovery, because we are honest and
forthcoming, we turn that discovery over to the VA and the VA
takes that information and immediately begins processing the
payment to the client, that a client receives the payment hours
if not days before the hearing. The case gets mooted and there
is no award of attorneys' fees.
So our firm put in several thousand dollars into the case
and ultimately we do not recover. And because it is veterans,
we try not to recover against those veterans, especially if
they only receive $2,000 or $3,000 because of the damages that
they suffered at the hands of the VA and they ran up $3,000 or
$4,000 in legal bills. I, as a service-disabled veteran, am not
going to charge that to that employee.
So ultimately I am holding the bag for hundreds of
thousands of dollars in bad debt because the VA moots cases.
Mr. Mitchell. Thank you.
Dr. Roe.
Mr. Roe. Thank you, Mr. Chairman.
I will start with the mooting. It reminds me of basketball.
When Dean Smith played the four corners offense, you just keep
throwing the ball around until the time runs out.
And what happens, I think, is that, and I have seen this,
and if you want to make someone like me sweat is have an
Obstetrician/Gynecologist doctor have a lawyer come in the
office. That really sweats us and we do not like that. And most
people do not. They are intimidated by the process.
And the longer they can make it harder for that person, the
less likely they are to get you to represent them because you
really are pushing yourself away from the table if you know you
are not going to recover your time. I understand that and I get
that.
Is there an entity, and maybe you are the wrong person to
ask this of, is there an entity that oversees the ethical
conduct of VA attorneys? Is there some structure?
Mr. Tully. There is confusion about that. I spoke with
Colonel Gunn before this and specifically laid out an example
in 2007 where my law firm was subjected to egregious ethical
conduct, that an impartial Administrative Judge confirmed was
unethical conduct.
We found out the jurisdiction in which that attorney was
admitted. We notified the Bar of that State. That State said
because it is a Federal practice and because it was before a
Federal administrative agency, they do not have jurisdiction.
We then contacted the VA Supervisor who said they do not
have any Office of Professional Responsibility and told us to
contact the Office of Inspector General. Filed a complaint with
the Office of Inspector General, never to be heard from again.
Mr. Roe. So really there is not any----
Mr. Tully. Exactly. And that is why a Professional
Standards Office would be perfect, especially in the
Compensation and Pension practice arena where they accredit
their opposing counsels.
Mr. Roe. I guess the other thing that is difficult in here,
because it is shades of gray, where you would expect the VA
attorney to vigorously, if they felt they were right, support
their side of the case. I certainly understand that.
And I guess the question is, when does it step over the
line? That is tough. And it is a gray area, I would assume.
Mr. Tully. Some of it is not, Dr. Roe. The written
testimony I submitted talks about fraudulently dating documents
and I provided specific case references in that case. That is
egregious. That person should be fired. That person should not
be practicing as an attorney. Where do you go with that?
And that is just one example. The information I provided in
the written testimony with names and docket numbers is the tip
of the iceberg because I only limited it to a handful of
employment law cases.
Mr. Roe. No question you are right. If somebody
fraudulently changes a date, I agree they should be fired. You
cannot believe anything they say.
Mr. Tully. Exactly.
Mr. Roe. I totally agree with that.
Mr. Tully. But right now there is nobody to go to.
Mr. Roe. Nobody to go to. As an attorney, how do you think
the VA Office of General Counsel is doing? I mean, are they
representing the government appropriately or overdoing it or
underdoing it? How do you see it?
Mr. Tully. My personal impression is that they are
understaffed in their employment law section. They are
overwhelmed. They are doing--as an overall system, they are not
bad people. They are good, hard-working Americans. There are a
handful of bad apples. But generally they are doing as good as
they can do with the short staff that they have and the volume
of cases that they have.
And their intimate involvement with the managers is
something that I have not seen at any other Agency. They are
actively involved in the day-to-day management of employment
law with the deciding officials. And that kind of zaps a lot of
time and energy so versus at other agencies, DoJ, Department of
Labor, they, the managers, make the decisions and get the
attorneys to rubber stamp it.
Mr. Roe. So generally you are thinking that in plain
language you do not think that they are acting as an
institution unethically? You think they are just overwhelmed
and there may be a few bad apples, is that----
Mr. Tully. Absolutely. And those few bad apple have been
around for a while and they need to go. And, unfortunately,
there is nobody around that is able to collect all of the
information on those bad apples to build a case to get rid of
them.
Mr. Roe. I would think, I know that if you want to lose a
medical malpractice case, all you have to do is alter a
document and you have lost it right then. You do not need to go
any further.
And I would think if you altered a document, I mean, to me,
that is as dishonest as you can get. When you are lying on a
court of law, I would think it would be perjury or something. I
do not know the legal part. But if you have done that to alter
an outcome, I mean, that is just over the top, I think.
Mr. Tully. I tend to agree. The downside, what quickly
happens is when those attorneys are caught in that type of
situation, the cases are almost automatically settled because
the Department of Labor attorney knows that they are caught,
goes back to the deciding official, and says give me $50,000
and make this go away and I want a confidentiality clause.
And our clients are trying to keep their job and they want
a little bit of money. They are going to sign that. So it is a
self-fulfilling prophecy with the way the current system is set
up because there is no independent person that we can call and
say, hey, the only reason why they are doing a settlement right
now is, you know, we got them.
Mr. Roe. Well, I want to thank you for your service to our
country.
And I yield back.
Mr. Mitchell. Thank you.
Mr. Adler.
Mr. Adler. Thank you, Chairman.
Let me followup on Dr. Roe's comments. First, I also thank
you for your service to our country and I thank you for this
ongoing service you are providing, telling Congress about some
anomalies, some outliers in the otherwise ethical conduct of
the Office.
You spoke briefly in your written testimony about Tang v.
U.S. Department of Veterans Affairs. Do you have actually
documentary evidence that can back up the claim that there was
a fraudulent postmarking?
Mr. Tully. Absolutely. I would be more than happy to have
my office send it to you this afternoon.
[Mr. Tully subsequently responded to Mr. Adler and VA
General Counsel Gunn, in a letter dated July 7, 2010. The VA
General Counsel, Mr. Gunn, responded to Chairman Mitchell in a
letter, dated August 19, 2010. The letters are being retained
in the Committee files due to the inclusion of sensitive
personal information.]
Mr. Adler. I think it would be really helpful, I think,
because I really liked your balanced testimony where you were
saying that most folks, most of the attorneys representing the
Veterans Affairs Department were behaving ethically.
But if there are outliers, if there are folks who are not
following that higher standard to which government attorneys
have to adhere, we should catch them. And I think it is
Congress' job. If the Office of General Counsel cannot do that,
we could help them do that.
So maybe if you could have your office send over to the
Committee Chair and through the Chair to the rest of it, I
think it would be very helpful to have us follow up more
directly with the VA, not naming names publicly if that is not
necessary, but maybe helping the VA identify those folks who
are not performing up to that ethical level that you correctly
note the Berger standard requires.
So I wonder if you could do that for us.
Mr. Tully. Too easy, sir.
Mr. Adler. Thank you.
I have no further questions. Thank you.
Mr. Mitchell. Thank you.
Again, we appreciate your service and what you are doing to
help veterans. Thank you, Mr. Tully.
Mr. Tully. Thank you.
Mr. Mitchell. I would like to welcome panel two to the
witness table. And for our second panel, we will hear from the
Honorable Will Gunn, General Counsel for the U.S. Department of
Veterans Affairs.
Mr. Gunn is accompanied by Phillipa Anderson, Assistant
General Counsel, and Michael Hogan, Assistant General Counsel.
Mr. Gunn, you will have 5 minutes to make your presentation
and your complete record will be made part of the record. Thank
you.
STATEMENT OF HON. WILL A. GUNN, GENERAL COUNSEL, U.S.
DEPARTMENT OF VETERANS AFFAIRS; ACCOMPANIED BY PHILLIPA
ANDERSON, ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL,
U.S. DEPARTMENT OF VETERANS AFFAIRS; AND MICHAEL HOGAN,
ASSISTANT GENERAL COUNSEL, OFFICE OF GENERAL COUNSEL, U.S.
DEPARTMENT OF VETERANS AFFAIRS
Mr. Gunn. Thank you, Mr. Chairman, Mr. Roe, other Members
of the Subcommittee. I appreciate this opportunity to come
before you today to testify in my position as General Counsel
for the Department of Veterans Affairs.
First of all, Members, I just want to emphasize that I am a
veteran. I am a 25-year Air Force retiree. I spent most of my
time as a judge advocate. I have spent time both defending
military members and prosecuting military members and a wide
variety of other roles.
Immediately before coming into this position, I served as
the sole practitioner in my own law firm where I defended
veterans and represented military members. So the opportunity
that I have in this role is one that I take very, very
seriously and it is near and dear to my heart, to my passion.
First of all, I want to welcome with me Mr. Hogan, who
essentially heads our management and operations group, and Ms.
Phillipa Anderson, who heads our contract law and real property
group.
Mr. Chairman, when I came into this office 13 months ago, I
had talked to a variety of people about what was going on in
the Office of General Counsel and I received advice from
various individuals. Most of those people had a common theme
and that was that the Office was one that was responsive and
that provided good results.
After being in Washington for about a month, I went on the
road, traveled around the country to our Regional Offices to
test that initial hypothesis that this was a high-performing
organization. And I am pleased to say that that initial
hypothesis was validated.
Now that I have been here more than a year, I am still at
that same position that this is a high-performing organization
and it has been validated by evidence.
For instance, OGC, the Office of General Counsel, scores
very high on our client satisfaction surveys. We have been
sending out surveys since 2003. In 2010, our clients gave us an
overall satisfaction score of 4.57 on a scale of 5.0.
The section led by Ms. Anderson received a recognition from
our Major Construction and Real Property Programs Unit,
received their Partner in Service Delivery Award. We also
received recognition from the Department of Justice last year
where we received their John Marshall Award for Outstanding
Legal Achievement for Agency Cooperation in Support of
Litigation. We are the only Federal agency to be recognized in
this manner.
In addition, the Office of Government Ethics awarded us
with outstanding achievement in managing an Agency Ethics
Program and this past year, we received recognition from the
Office of Government Ethics in terms of excellence in
developing communications products that other Federal agencies
have adopted.
I am also gratified that our employees within the Office of
General Counsel also rate us extremely highly with respect to
our internal employee scales, employee ratings.
Mr. Chairman, when I came aboard, I found a strategic
planning process in place. And that strategic planning process
identified a central goal for the organization. That was that
the Office of General Counsel become a truly unified national
law firm.
I embrace that theme because I believe that in order to
meet the needs of the Department and in order to serve
veterans, we are going to have to be more effective and we are
going to have to be more unified.
As you mentioned in your earlier remarks, we have to focus
on being more consistent and providing the very best service
that we can.
With that in mind, I have established some strategic
objectives and some strategic priorities. Those emphasize
education and training for our staff, knowledge management so
that we can retrieve information and share information across
the country, and also cross-office and cross-regional
collaboration. We are emphasizing these so that we can be even
better and so that we can provide the very best service that we
can.
I just want to close by stating this. I am committed to
providing extraordinary customer service and I am also
committed to providing service that is based in excellence and
in integrity. That is my hallmark.
As an Air Force Officer, I lived by certain core values.
Those core values were integrity first, service to others
before self, and excellence in all that I do. I still live by
those principles and I am committed to instilling those
principles throughout the Office of General Counsel.
I stand ready to respond to your questions.
[The prepared statement of Mr. Gunn appears on p. 25.]
Mr. Mitchell. Thank you very much, Mr. Gunn. And all of us
appreciate very much the service you have given to this country
and we appreciate that very much.
You mentioned at the very beginning all the great
satisfaction reports you have received from your clients.
Who are your clients? They are not veterans, are they?
Mr. Gunn. Sir, we do not directly serve veterans. You are
correct.
Mr. Mitchell. Who are your clients?
Mr. Gunn. Ultimately my client is the Secretary of Veterans
Affairs. And so as the Department's top lawyer, my job is to
make sure that the Secretary is well-armed.
As I describe it and as we cascade down throughout the
Department, we provide services to senior managers at local
facilities and also within the Central Office of Veterans
Affairs.
I look at it as we are providing legal guidance and support
so that those that do provide direct services to veterans are
able to do their jobs most effectively.
Mr. Mitchell. There have been times in the past where the
VA frequently declines to produce a witness requested to either
testify at hearings or brief the Subcommittee. And the OGC's
guidance often gets cited as the reason for not producing
witnesses at either hearings or briefings.
Two questions. What role does OGC play in the VA deciding
who either testifies or briefs the Subcommittee and does the
OGC provide an opinion when the VA refuses to produce certain
information as requested by Congress or through the public?
Mr. Gunn. Sir, with respect to the first issue in terms of
whether or not OGC plays a role in who will testify, I will
say, no, we do not see ourselves as having a role with respect
to that.
In terms of the second issue, we do play a role in terms of
responding to requests for documents. And our advice is focused
on two things, what can we provide, what is permissible, and,
secondly, what are we required to provide?
As you yourself, I believe, mentioned in your opening
statement, there is a tension that exists from time to time,
particularly when we are talking about predecisional documents
in terms of whether or not we can release a given document. We
do our best to provide advice and counsel in those situations.
Mr. Mitchell. You heard the first panel discuss the OGC's
lack of concern as being in contravention of the ethical duty
required of Agency attorneys.
Can you speak more about the ethical duties required of
attorneys in the VA and address allegations that the VA fails
to meet the standard?
At the same time, there seems to be a difference in holding
people to ethical standards in the private sector versus the
OGC. There is a Bar Association, for example, that can hear
complaints.
What is there on the part of the OGC to respond to
unethical practices?
Mr. Gunn. Well, Mr. Chairman, first of all, I found out
about the first panel less than an hour ago on my way over here
and so that was the first, and when I got here, getting a
chance to scan through his statement and also listening to him,
and I did get an opportunity to speak to Mr. Tully briefly
before this hearing began, and so I am very interested in his
comments.
One of the things that we introduced is just a newsletter
for the Office of General Counsel. We circulate it on a weekly
basis. And in each one of these newsletters, I get an
opportunity to prepare a column. I emphasize in those columns,
I have taken most of the last 3 months to emphasize our values.
Our values, at the top of those values are the value of
integrity and the value of being ethical.
And so that is something that I take very, very seriously.
I will say that before today, I had not heard comments along
those lines. So I have invited Mr. Tully to follow up with me
and to provide me with specific examples because I do want to
follow up.
But I will also say, I just want to make sure that the
Committee understands, that even though we are a Federal
agency, all of our attorneys must be licensed by a State Bar
Association. And they are subject to disciplinary action from
those State Bars if they violate the Rules of Professional
Responsibility for that given State.
So that is always an option that someone has if they are
dissatisfied or if they believe that our attorney has acted in
an unethical manner.
I have also instructed my team to develop an internal
process for reviewing complaints of unprofessional conduct by
our attorneys.
So that is something that I take very, very seriously and I
look forward to finding out more information.
Mr. Mitchell. Thank you.
I yield to Dr. Roe.
Mr. Roe. Thank you, Mr. Chairman.
Just to continue the Chairman's line of questioning
briefly, and you just mentioned that you are working on an
internal process and, of course, the State Bar, but what will
you do if you found out that a document had been deliberately
altered to alter the outcome of an event? What would you do
with that?
Mr. Gunn. Dr. Roe, I agree with what you said in responding
to the first panelist and that is that that is egregious
conduct. That is unacceptable. And while I only rate personally
two individuals, I would strongly suspect that that would be
basis for dismissal.
Mr. Roe. That is a good answer. I think I know what I would
do.
And I guess when you have a situation where let us say
there are obviously two issues, Mr. Tully is defending someone
and you are on the other side, when you discover that maybe
your position is wrong, what do you do in that situation?
And what he was saying was that in the private practice of
law, whether you are guilty or innocent, you can be vigorously
defended. He is saying that is not the case.
Do you agree with that, what he said?
Mr. Gunn. I do. You know, last week, I had an opportunity
to spend some time with new attorneys in the Office of General
Counsel. We had a new attorney orientation course here. And I
spent time with them on the first day of the course and I spent
time with them on the last day of the course.
Included in my comments was just an overall theme and that
theme was that as attorneys, as Federal Government attorneys,
particularly attorneys in the Department of Veterans Affairs,
we need to be focused on one thing and that is doing the right
thing.
And so that has to be at the forefront of what we do. As
you probably know, let us say our counterparts in the
Department of Justice, the Federal prosecutors, they have a
responsibility of representing the taxpayers, the American
public in criminal litigation. And so they are trying to win
those cases.
But ultimately they have a higher calling and that calling
is to do justice. So I absolutely agree that that is also our
responsibility.
Mr. Roe. So at the end of the day, you would negotiate an
end to this if you found out that your side was--you would not
vigorously defend the wrong position if you evaluated it as
that?
Mr. Gunn. Absolutely. One of the tools that we have at our
disposal is the settlement tool. And when we find that we are
going up the wrong road in litigation, we are in a position
where we can do our best to settle the case.
Mr. Roe. I think meeting with Mr. Tully, I think he had a
different opinion sometimes about how that was happening. And I
would like to see that worked out.
One other quick question. And this is an interpretation
basically on the HITECH Act (Health Information Technology for
Economic and Clinical Health Act) where an interpretation was
that it had to be, when there is a breach, that there had to be
500 people in each State. And obviously a breach is
embarrassing to VA and to the government. So you would like to
not have breaches.
But in using that less than 500 interpretation, that means
that you could have thousands of people whose data was
breached, if you used the per State, instead of just saying
that this is a 500 or 499, and you multiply that times 50, you
get thousands of people. Now, that would be a hard, difficult
scenario, I think.
But how did your office come, not necessarily you, but how
did your office come to that conclusion?
Mr. Gunn. Dr. Roe, two points that I would like to make. Of
course, I deal with situations when there has been an
unauthorized disclosure of personal identifying information.
And with respect to that, first of all, in terms of our
role of looking after the veteran, doing our best to take care
of veterans, when we find that a veteran's information has been
disclosed, we do our utmost to notify the veterans. So
regardless of the requirements of HITECH, we notify veterans.
That is first and foremost.
In terms of the HITECH itself, I understand and I have had
discussions with some of your staffers with respect to concerns
about our interpretation of that, but our interpretation when
it is necessary to make a media disclosure is based upon
information that the U.S. Department of Health and Human
Service (HHS) provided when they promulgated their interim
regulations on this topic.
For instance, they specifically gave an example that if
there was an unauthorized breach involving 600 individuals, 200
who lived in Virginia, 200 that lived in DC, and 200 in
Maryland, then there would not be a breach that required
notification of media under HITECH. So that was their
interpretation.
So in providing advice to our clients, we went back and
responded in that manner.
Mr. Roe. Okay. I think we have votes, Mr. Chairman. I yield
back.
Mr. Mitchell. We do have some votes.
Let me ask two quick questions. In my opening statement, I
mentioned about the OGC repeatedly using time extensions in
court in order to keep pace with their workload.
And I want to know, is the workload so great that it
continues to be an ongoing issue?
And, secondly, we have often heard from various Department
entities that the documents crucial to the Subcommittee's work
had been tied up in the General Counsel's Office or restricted
for release.
Now, one quick question with that. Are your attorneys
overworked? How many hours a week do they work? Do they work 40
hours? Do they get overtime pay? How are they compensated
compared to the private sector? What kind of incentives do they
have to do work?
Mr. Gunn. Mr. Chairman, I believe first of all from an
overall perspective we are blessed to have highly motivated
employees. And the results from our employee surveys will bear
that out. And we would be more than happy to share that
information with the Committee so that you can see that.
[The VA subsequently provided VA Employee Survey
Information for 2009 and 2010, which appears on p. 30.]
But in addition to that, beyond that, you are right. In
terms of our representation of the Department before the Court
of Appeals of Veterans Claims, we have fallen into a position
that we were requesting delays at a higher rate than were the
appellants who were bringing, the veterans who were bringing
their cases before that court.
But thanks to you, thanks to other Members of this
Committee and the Congress, we have had budget increases that
have allowed us to bring more resources to bear in our Group 7,
which provides that representation. As a result of that, we are
doing much better on that front.
We are also working hard to do two things. We want to make
sure that we are able to provide effective representation in a
timely manner and we also have to be sensitive to the fact that
we do not want our attorneys overworked.
We found in that particular section that if an attorney has
more than 50 cases at a time, that leads to more delays. That
also leads to burnout. So we have been able to increase the
number of attorneys that we have and as a result of that, we
have been able to respond in a much more timely manner and
request fewer delays.
Mr. Mitchell. Thank you.
We are going to have to conclude this hearing. We have
votes.
I just want you to know that, first of all, how much we
appreciate what you are doing and your service to the taxpayers
and also to this country.
But as we have requested with all of our hearings, we will
follow up and there are a number of questions we have to follow
up to make sure that we are doing our job because it does no
good to have a hearing and just let it go.
Mr. Gunn. Yes, sir.
Mr. Mitchell. So we will do that.
Did you want to say anything?
Okay. All right. Thank you very much. And this hearing is
adjourned.
Mr. Gunn. Thank you, sir.
[Whereupon, at 10:50 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Prepared Statement of Hon. Harry E. Mitchell, Chairman,
Subcommittee on Oversight and Investigations
Thank you to everyone for attending today's Oversight and
Investigations Subcommittee hearing entitled, Evaluating the U.S.
Department of Veterans Affairs Office of General Counsel.
Each day the U.S. Department of Veterans Affairs (VA) executes
laws, regulations and policies that have a profound effect on how the
Department conducts its business and assists our Nation's veterans. The
General Counsel serves as the VA's chief legal officer, as the office
provides legal advice to the Secretary and all organizational
components of the Department. It is no secret that the VA's General
Counsel, or OGC, plays a critical role in the decision-making and
oversight of the VA.
The OGC is a unique and complex office within the VA, and its full
range of responsibilities, including legal, litigation, legislative and
regulatory activities is distributed among seven Professional Staff
Groups, each headed by an Assistant General Counsel. Each of these
groups has the expertise in specific subject matter areas, and is
responsible for providing legal advice to program officials, reviewing
proposed regulations and directives, and handling litigation involving
VA programs. Additionally, the OGC operates 22 field offices, which
comprises almost two thirds of OGC's workforce. With general counsel's
widespread workforce, the OGC must promote consistency and uniformity
of its recommendations that lead to executive decisions that directly
impact millions of veterans.
We have heard many times that the OGC has repeatedly used time
extensions from the court in order to keep pace with their workload;
however, the workload is so great that it continues to remain an
ongoing issue. Additionally, we have too often heard from various
Department entities, that documents crucial to this Subcommittee's
work, are tied up with the General Counsel's office or that they are
restricted by the OGC for release.
Though OGC insists that the oversight responsibility of Congress
deserves respect, there is often, at times, a tension between this
oversight responsibility and agencies' needs to protect certain pre-
decisional information from disclosure out of concern that it could
have a chilling impact on the free and open internal discussion and
debate leading to the provision of advice needed by agency decision
makers.
As the VA OGC deals with these challenges, they must still continue
to give timely and balanced legal recommendations that will benefit the
needs of our veterans and the Department of Veterans Affairs.
Determining an objective standard to evaluate a subjective trade is a
challenge; nonetheless, the general counsel needs to bring reform to
the VA's Office of General Counsel.
I look forward to hearing from the general counsel the challenges
the office is facing, as well as solutions that are being implemented
to correct long standing issues within the Office.
Prepared Statement of Hon. David P. Roe, Ranking Republican Member,
Subcommittee on Oversight and Investigations
Thank you Mr. Chairman.
According to the VA Web site, the mission of the VA Office of the
General Counsel (OGC) is to identify and meet the legal needs of the
Department of Veterans Affairs (VA). Its primary objective is to ensure
the just and faithful execution of the laws, regulations and policies
that the Secretary has responsibility for administering, and by so
doing enable the Department to accomplish its mission of service to our
Nation's veterans.
In recent years, Congress has increased the budget allocation to
the Office of General Counsel to assist them in meeting this mission.
With the current 9.2 percent budget increase for FY 2010, and the
requested 9.6 percent increase for FY 2011, it is appropriate to call
this hearing to review the work of the Office of the General Counsel
and make certain that the product produced by that office is providing
the best benefit to our Nation's veterans and the American taxpayer.
Over the past several years, this Committee has reviewed a number
of contracting issues, where it was apparent that the guidance provided
by the VA General Counsel was insufficient, inaccurate, or lacking.
Recent VA OIG reports on contracting have shown deficiencies within the
Office of General Counsel with respect to supporting contract
management. I am interested in hearing from the General Counsel on how
his resources are being allocated to improve contract management at the
department.
I also want to know if the General Counsel plans to improve the
relationships between the Contracting Officers and the Regional General
Counsels, so that they actively seek their advice on major contract
awards prior to the award being granted. Does the General Counsel plan
to more actively perform pre- and post-award contract reviews on all
contracts?
I am also concerned about delays we frequently hear about during
meetings on the concurrence process for Directives issued by the
Veterans Health Administration. Often we are told that a directive is
being held up by the General Counsel's office. These delays in
providing legal opinions can lead to delays in updated treatment
information being sent to the VISNs and medical facilities and may
cause problems with patient care.
The bottom line here is that we make certain the resources Congress
provides to VA are being allocated properly in order to provide the
most benefit for the veterans and the American public, at the best
value possible? Given the current track record of the General Counsel
in contracting matters, I am uncertain that this is the case.
Mr. Chairman, I yield back my time.
Prepared Statement of Matthew B. Tully, Esq., Founding Partner,
Tully Rinckey PLLC, Albany, NY
Chairman Mitchell, Ranking Member Roe, and Members of the
Subcommittee, on behalf of the Tully Rinckey law firm and our
Department of Veterans Affairs' employee clients, thank you for the
opportunity to present my evaluation of the U.S. Department of Veterans
Affairs (VA) Office of General Counsel (OGC). As the founding partner
of a law firm that deals extensively with the VA OGC and its Regional
Offices, the matters of today's hearing are of particular importance to
me.
In order for you to better understand my insight into the
Department of Veterans Affairs, I would like to provide you with some
brief information about myself. I am a Major in the New York Army
National Guard and a service-connected disabled veteran, having served
at Ground Zero after the attacks on the World Trade Center on September
11, 2001 and in Operation Iraqi Freedom. I established my law firm in
Albany, NY in 2004, serving the legal needs of Federal Government
employees in labor and employment law matters, including allegations of
discrimination, whistleblower reprisal, disciplinary action, and USERRA
claims. Today, my Washington, DC law office represents numerous
Veterans' Affairs employees fighting for their Federal careers.
Through my professional legal dealings with the Office of General
Counsel, as well as the dealings of my fellow attorneys, I come before
you today with both general and specific examples of issues plaguing
the VA legal department in the hopes that by shining a light on the
ineffectual and often inhibitive actions taken by this Department's
lawyers, concrete corrective actions may be taken.
Ethics for Government Agency Counsel
Seventy-five years ago, the Supreme Court in Berger v. United
States, issued an opinion implying that government attorneys must
practice a higher standard of ethics than private attorneys.\1\
Following this decision, the judiciary and the American Bar Association
embraced this implication by expressly requiring government attorneys
to adhere to higher ethical standards.\2\ The judiciary in confronting
cases dealing with these issues, has been concerned with (1) the
continuation of needless litigation, (2) harassment, and (3) the
pursuit of a result contrary to justice and the public interest.\3\
Most notably, in Freeport-McMoRan Oil & Gas Co v. FERC, the United
States Court of Appeals for the District of Columbia Circuit, in citing
Berger, found that a government lawyer ``is the representative not of
an ordinary party to a controversy,'' ``but of a sovereignty whose
obligation . . . is not that it shall win a case, but that justice
shall be done.'' \4\ The court also found that government agency
attorneys may be held to higher standards than attorneys for private
litigants.'' \5\ As attorneys for the government, they have a
``responsibility to seek justice,'' and ``should refrain from
instituting or continuing litigation that is obviously unfair.'' \6\
Also significant was the United States Court of Appeals for the Tenth
Circuit in Bulloch v. United States, in which concealment of
information by the government during discovery was ``made even more
egregious'' by the government lawyer's heightened responsibility to
seek justice and to develop a full and fair record.\7\ This type of
responsibility was properly exercised in connection with the post-trial
litigation in United States v. Theodore F. Stevens, in which the
Department of Justice asked a Federal judge to drop all charges against
former Sen. Ted Stevens of Alaska. A review of the case indicated that
certain information should have been disclosed to the defense for use
at trial and that it was in the interests of justice to dismiss the
indictment and not proceed with a new trial.
---------------------------------------------------------------------------
\1\ Berger v. United States, 295 U.S. 78 (1935) (finding, ``The
United States Attorney is the representative not of an ordinary party
to a controversy, but of a sovereignty whose obligation to govern
impartially is as compelling as its obligation to govern at all; and
whose interest, therefore in a criminal prosecution is not that it
shall win a case, but that justice shall be done.'')
\2\ C. Mark Bain, The Ethics of Government Attorneys: A Victory in
the Pursuit for Justice, 20 J. Legal Prof. 183 (1995).
\3\ See, e.g., Gray Panthers v. Schweiker, 716 F.2d 23, 33 (D.C.
Cir. 1983) (including a higher duty because the client is not only the
agency but also the public at large); Douglas v. Donovan, 704 F.2d
1276, 1279-80 (D.C. Cir. 1983) (``[G]overnment attorneys . . . have
special responsibilities to both this court and the public at
large.''); United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d
1365, 1370 (9th Cir. 1980) (``The effectiveness of and need for harsh
measures is particularly evident when the disobedient party is the
government.''); EEOC v. Waterfront Comm'n of New York Harbor, 665 F.
Supp. 197, 201 (S.D.N.Y. 1987) (``[T]his case should serve to put
government attorneys on notice that they are not exempt from the
Federal rules [of civil procedure] and that they will be held to the
highest standards of the Bar.''); Jones v. Heckler, 583 F. Supp. 1250,
1257-58 n.7 (N.D. Ill. 1984) (``[C]ounsel for the United States has a
special responsibility to the justice system.''); Braun v. Harris,
Unempl. Ins. Rep. (CCH) P17,070, at 2499-2500 (E.D. Wis. Apr. 30, 1980)
(``Government attorneys, however, by virtue of their unique position,
owe a greater responsibility to the justice system. The courts have
come to expect and have righly [sic] demanded a higher degree of candor
from government attorneys.''); EEOC v. Datapoint Corp., 457 F. Supp.
62, 65 n.10 (W.D. Tex. 1978) (``Because of the peculiar power of the
government litigator, he is subject to ethical consideration beyond the
ordinary litigator.'').
\4\ Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C.
Cir. 1992).
\5\ Id. at 47.
\6\ Id.
\7\ Bulloch v. United States, 763 F.2d 1115, 1125 (10th Cir. 1985),
cert. denied, 474 U.S. 1086 (1986) (McKay, J., dissenting) (concealment
of information by the government during discovery was ``made even more
egregious'' by the government lawyer's responsibility to seek justice
and to develop a full and fair record).
---------------------------------------------------------------------------
The American Bar Association, under Ethical Consideration 7-14 has
also provided appropriate guidance with regard to this issue, which
states:
A government lawyer who has discretionary power relative to
litigation should refrain from instituting or continuing litigation
that is obviously unfair. A government lawyer not having such
discretionary power who believes there is lack of merit in a
controversy submitted to him should so advise his superiors and
recommend the avoidance of unfair litigation. A government lawyer in a
civil action or administrative proceeding has the responsibility to
seek justice and to develop a full and fair record, and he should not
use his position or the economic power of the government to harass
parties or to bring about unjust settlements or results.\8\
---------------------------------------------------------------------------
\8\ See Also, ABA Comm. On Ethics and Professional Responsibility,
Formal Op. 342 (1975) (Canon 7 recognizes that ``the duty of all
government lawyers [is] to seek just results rather than the result
desired by a client.'').
The Federal Ethical Considerations espoused by the Federal Bar
Association contain similar commentary, which define the Federal
lawyer's professional obligation as ``the promotion under law and
applicable regulations of the public interest entrusted to the
department, agency or other governmental agency of his employment.''
\9\ The prevailing attitude is perhaps best represented by one of the
mottos on the walls of the Department of Justice, which reads, ``The
United States wins its point whenever justice is done its citizens in
the courts.'' \10\
---------------------------------------------------------------------------
\9\ FEC 7-2; See Also FEC 8-1 (``paramount consideration is due to
the public interest.'').
\10\ Catherine J. Lanctot, The Duty of Zealous Advocacy and the
Ethics of the Federal Government Lawyer: The Three Hardest Questions,
64 S. Cal. L. Rev. 951 (1991).
---------------------------------------------------------------------------
Failures to Uphold Ethical Considerations
Based on the Supreme Court's holding in Berger as well as the case
law espoused in a multitude of other jurisdictions and the appropriate
ethical rules set forth by the American Bar Association and Federal Bar
Association, attorneys representing government agencies have a
heightened ethical duty to seek justice and develop a full and fair
record in handling legal matters. The tendency of agency attorneys at
the Department of Veterans Affairs to treat managers as private clients
and to zealously represent them as clients without any concern for the
person aggrieved in an employment action is completely in contravention
of the ethical duties required of government attorneys. The practice of
agency attorneys in protecting managers at all costs and contributing
to the continuation of needless litigation reflects a complete
disregard for the principles reflected in the appropriate ethical rules
concerning the public interest and in seeking justice.
The current practice of the Department of Veterans Affairs, in
using attorneys in management decisions as a form of legal strategy, is
an additional example of agency attorneys acting in contravention of
their ethical duties as attorneys for the government. Frequently,
agency attorneys act as decision makers in adverse actions or
discipline actions in an attempt to create an attorney-client privilege
with managers if the employee pursues litigation.
Furthermore, it may isolate the government from liability or
protect communications that may be discriminatory or retaliatory. These
results do not show any concern for the public interest and are clearly
not in accordance with Agency attorney's heightened ethical duty to
seek justice and develop a full and fair record in those cases that
they handle for the government.
In my firm's dealings, OGC representatives have utilized numerous
stonewalling techniques, often mimicking the corporate litigation
counsel at BP', AIG' or Enron'. In
fact, instances include OGC engaging in unnecessary legal discovery
requests with private counsel, refusing to submit discovery despite
private counsel legal requests and failing to adhere to key legal
deadlines. This needless and borderline unethical action often
lengthens the claim process, causing VA employees, many of whom are
still employed by the VA during this time, to incur unnecessary legal
costs and emotional stress. Additionally, the reputation of the VA OGC
continues to deteriorate.
One such example includes the pending case of Frank Gonzalez v.
Shinseki, Sec'y, Dep't of Veterans Affairs; EEOC No. 570-2010-00541X
(2010), in which the VA attorney overly objected to interrogatories
sent to the agency and failed to provide any substantive responses
thereto. This legal maneuver will force our attorneys to produce and
file a motion to compel to get even our most basic questions answered.
Due to this, the client will be forced to incur greater legal costs in
order to pursue his claims of workplace discrimination and will further
tax the already overburdened Equal Employment Opportunity Commission.
In one particular case earlier this year, Charlene Ng Tang v. U.S.
Department of Veterans Affairs, MSPB Docket No.: AT-0752-10-0514-I-1, a
VA hospital employee was demoted based on charges of misconduct and our
firm appealed to the Merit Systems Protection Board (MSPB). The VA
representative wholly failed to respond to our discovery requests and
our motion to compel. Further, VA Attorneys untimely served the VA's
request for discovery, which was fraudulently dated about a week before
the postmark, a date after the deadline.
Finally, our firm has had numerous issues with the VA OGC not
complying with the terms of settlement agreements or not processing
settlements altogether. In an EEO complaint in which the victim was
sexually harassed by her direct supervisor, the VA settled the claim.
However, the Agency failed to follow the terms of the settlement
agreement. Further, the OGC refused to take any responsibility for the
situation and specifically blamed its EEO office for the breach in
agreement. Additionally, after admitting there was a breach, the OGC
approved the EEO office moving this complainant back to the building
where the harassment had occurred less than 1 year earlier, and the
alleged harasser was still located, despite being told that the
complainant did not feel comfortable being placed in close vicinity to
this former supervisor.
In the case of Patrice Robinson v. U.S. Department of Veterans
Affairs, EEOC Case No.: 570-2009-00634X, our firm hounded VA attorneys
to complete terms of settlement including expunging required personnel
files, timely processing the client's resignation, and completing her
performance appraisal. Our firm had to file an appeal alleging breach
of the settlement agreement before terms were finally complied with
appropriately. This not only caused greater stress on the client, but
greater legal costs and time.
In all of these instances, the unprofessional conduct displayed by
the VA lawyers translated into greater financial costs for the client,
a prolonged legal process, and greater stress not only on the client,
but to all VA staff members involved. Furthermore, due to OGC tactics,
VA employees are often denied quality legal representation because
plaintiff legal counsel actively avoid accepting VA cases to avoid the
legal and financial burdens of working with the VA OGC.
Failing to Uphold USERRA Statutes
The Uniformed Services Employment and Reemployment Rights Act of
1994 \11\ (USERRA) was enacted to protect the employment of this
country's civilian soldiers while they are fulfilling their military
responsibilities and requirements. In 2003, the United States Court of
Appeals for the Federal Circuit (``Federal Circuit'') found that, prior
to the change in the military leave law, which was effective on
December 21, 2000, Federal agencies improperly charged members of the
U.S. National Guard and Reserves military leave for non-workdays that
occurred within a period of assigned military duty.\12\
---------------------------------------------------------------------------
\11\ Pub. L. 103-353, codified as amended at 38 U.S.C.
Sec. Sec. 4301-4335 (2010).
\12\ Butterbaugh v. Department of Justice, 336 F.3d 1332 (Fed. Cir.
2003).
---------------------------------------------------------------------------
Thus, thousands of Federal civilian employees, including Veterans
Affairs employees, were charged military leave on days Federal agencies
did not require them to work, i.e., weekends and/or holidays. In order
to remedy these wrongs, Federal employees who have improperly charged
in this manner are able to file claims with the MSPB against the
violating agency in order to recover lost leave or salary. See 38
U.S.C. Sec. 4324. These claims often require the assistance of
attorneys for the VA employees, due to the difficulty in obtaining old
military and civilian pay records, including leave and earning
statements, military orders, or time and attendance records to prove
leave loss.
In these cases, our attorneys have found that the VA OGC often
maliciously extends the legal process, causing VA employees to incur
further financial loss and legal stress. By exhausting the litigation
process until the day before, or even hours before the actual hearing,
OGC continually forces private attorney legal bills to increase. More
striking, after initial and prolonged stonewalling, the VA often
ultimately provides the veteran with the relief originally requested
minus the attorney costs and litigation expenses authorized by law. See
38 U.S.C. Sec. 4324(c)(4).
This strategy, known as ``mooting,'' means that the VA is under no
obligation to pay attorney fees despite the clear stalling techniques
that it had employed throughout the case. Thus, while the client
receives back pay or leave, all legal costs associated with filing and
proving the claim, including attorneys' fees generated by the VA's
``mooting'' strategy, are not reimbursed. This is both costly and
taxing to the client, private law firms, as well as to the Department
of Veterans Affairs, resources of which are diverted from settlement to
irrelevant and unnecessary legal strategizing. The end result is that
Federal employee law firms like mine refuse to accept VA employees as
clients or alternatively charge a higher initial retainer because of
the outrageous legal strategies of the VA OGC thus denying VA employees
access to the legal system and equal justice under the law.
For example, in the case of Richard Plezia v. Department of
Veterans Affairs, MSPB Docket Number: CH-3443-05-0404-I-2, the agency
restored our client [Richard Plezia] thirty-four (34) days of annual
leave. The Agency's unwillingness to provide any attorney fees was
evidenced in its Response to the Acknowledgement Order. (See attached,
Exhibit A). The Department of Veterans Affairs specifically stated that
if our client elected to proceed with the claim through the MSPB and
requested attorney fees, ``the Agency provides notice that it will
resist any petition for the same for the reason that the Appeal is an
unnecessary, needlessly confrontational and wasteful method of
resolving the dispute.'' This clear retaliation against our client for
exercising his legal rights has a chilling impact on law firms who
represent VA employees, as well as the VA employee's coworkers who
become afraid to file legal proceedings because of the costs involved.
This same legal strategy, in which the VA declines to settle the
leave claim at the outset and then later ``moots'' the case by giving
the client their demands to avoid paying the client's attorney fees, is
often repeated. In Gonzalo Solis v. Department of Veterans Affairs,
MSPB Docket Number NY-4324-10-0063-I-1, the claim was dismissed as moot
after the Agency restored the client [Gonzalo Solis] five (5) days of
annual leave. Consequently, $2,010.00 associated in legal costs was
incurred. Further, in Barry Phillips v. Department of Veterans Affairs,
MSPB Docket Number: PH-3443-05-0103-I-1, two (2) days of annual leave
was restored and the claim was dismissed as moot after $1,440.00 in
legal costs were garnered.
In many of these instances, legal costs substantially outweighed
the leave or leave payment returned to the Veterans Affairs employee
because of the outrageous legal tactics employed against these VA
employees who continued to service in their National Guard and Reserve.
The cases cited in this testimony are just the tip of the iceberg
of improper conduct by VA lawyers and are used to provide some
specificity to the abstract allegations made herein. Similar situations
can be cited in every other employment law related field of practice.
Conclusion
In order to alter the current course of the Department of Veterans
Affairs Office of General Counsel, my firm believes that VA OGC and
their regional offices should be held to the similar standards and
scrutiny currently followed by the Department of Justice (DOJ). The
DOJ's Office of Professional Responsibility (OPR) reports directly to
the Attorney General and investigates allegations of misconduct
concerning DOJ attorneys (this office is separate from the Inspector
General's office further stressing the importance of high ethical
standards for DOJ lawyers). OPR's objective is to ensure that DOJ
attorneys act in accordance with the high professional standards not
only expected of government attorneys, but of the Nation's principal
law enforcement agency.
At this time, it would greatly benefit the Department of Veterans
Affairs if both employees and private plaintiff counsel were able to
file complaints of alleged misconduct to a separate and impartial
office answerable directly to the Secretary. This would both deter VA
OGC from acting unethically and give the Department as a whole a new
found legitimacy. By doing so, the VA OGC could become a model of
standard ethical practice across all Federal agencies.
Thank you once again for the opportunity to communicate my insight
on the U.S. Department of Veterans Affairs Office of General Counsel,
the Subcommittee's time and consideration is greatly appreciated. I
look forward to working with the Committee in future endeavors to
correct the issues facing VA employees in their attempts to settle
their labor and employment disputes with the Office of General Counsel.
Exhibit A: Richard Plezia v. Department of Veterans Affairs
Prepared Statement of Hon. Will A. Gunn, General Counsel,
U.S. Department of Veterans Affairs
Mr. Chairman, Dr. Roe, and Members of the Subcommittee, good
morning. Thank you for the opportunity to testify today. As General
Counsel and the chief legal officer of the Department of Veterans
Affairs, I am pleased to discuss the operation of the Office of General
Counsel (OGC) as it supports the Secretary, senior leaders, and VA's
dedicated employees in their daily service to our Nation's Veterans.
The Office of General Counsel and Its Mission
The Office of General Counsel, as mandated by 38 U.S.C. Sec. 311
and 38 CFR Sec. 14.500, provides legal assistance to the Secretary
concerning the programs and policies of the Department and is
specifically responsible for litigation, interpretive legal advice, and
other legal services required for program implementation.
OGC interprets all laws, regulations, and judicial precedents
pertaining to the Department. We are responsible for the conduct of
litigation--both independently and in coordination with the Justice
Department--in State and Federal courts. OGC also plays a large role in
preparing VA's testimony for legislative hearings, analyzing pending
legislation in Congress, and drafting legislative proposals initiated
by VA.
OGC supports the strategic goals of the Department by providing
accurate, timely, and effective legal advice and representation. OGC
also assists in formulating policy and in providing legal advice and
services to the Secretary and all VA components. OGC also trains VA
employees to ensure compliance with applicable laws. Finally, the
General Counsel serves as VA's regulatory policy officer and manager of
its centralized regulatory management office.
Organizational Structure
The OGC is the Department's national law firm, operating not only
from VA Central Office and but also from 22 Offices of Regional Counsel
located throughout the United States. My focus as General Counsel has
been to foster a unified national-law office culture. By emphasizing
knowledge management, education & training, and intra-office
collaboration, we can leverage the collective expertise of nearly 500
attorneys and 230 paralegals and support staff to ensure timely,
accurate, consistent legal service to the Secretary and all elements of
the Department.
OGC headquarters is organized into seven Professional Staff Groups
(PSGs) and the Office of Regulations Policy and Management.
Approximately 40 percent of OGC's 730 personnel comprise these offices,
which specialize in providing legal advice and services related to the
subject areas identified below:
Professional Staff Group I has responsibility for administrative
claims and litigation under the Federal Tort Claims Act, and legal
services regarding education programs for Veterans and dependents, VA's
debt-collection activities under a number of statutes, vocational
rehabilitation programs, and VA's loan guaranty program. This group is
also responsible for administrative claims under the Military Personnel
and Civilian Employees' Claims Act and for requests for representation
made by VA employees to the Department of Justice.
Professional Staff Group II has overall responsibility for
providing advice concerning VA's multi-billion-dollar programs of
disability and death compensation and pension for Veterans and their
survivors, and Federal life-insurance programs for Servicemembers and
Veterans. In addition, the group is responsible for all legal advice
concerning the national cemetery system (except land acquisition, which
is handled by PSG V) and various burial benefits administered by the
Veterans Benefits Administration. The group is also responsible for
reviewing proposed and final rules for all VA programs to ensure
compliance with the Administrative Procedure Act, and other statutes
and orders governing rulemaking.
Professional Staff Group III provides legal advice in the areas
of health-care eligibility and benefits, medical administration,
medical research, labor-management relations, human resources, crimes
and police matters, VA-affiliated non-profit corporations, technology
transfer and ethics. The Assistant General Counsel for PSG III is VA's
designated agency ethics official, responsible for operating the
Department's ethics program.
Professional Staff Group IV is primarily responsible for four
legal practice areas--equal employment opportunity (EEO) law,
information law, appropriations/fiscal law, and intellectual property
law.
Professional Staff Group V is responsible for three major legal
practice areas--government contracts, including procurement, bid
protests, and contract litigation; real- and personal-property law; and
environmental law.
Professional Staff Group VI is responsible for providing
management and administrative support and services to OGC at VA central
office and the 22 Offices of Regional Counsel nationwide. The Assistant
General Counsel for PSG VI also serves as the principal advisor to the
Deputy General Counsel and the General Counsel on matters relating to
the delivery of legal services to client VA facilities in the field.
The Assistant General Counsel, PSG VI, supervises the 22 Regional
Counsels.
Professional Staff Group VII is responsible for representing the
Secretary of Veterans Affairs before the U.S. Court of Appeals for
Veterans Claims (CAVC). The decisions issued by the CAVC are often
precedential in nature and carry the weight of law, which, in turn,
potentially affects the administration of VA benefit programs and claim
procedures.
Regulation Policy and Management: OGC also has a separate
directorate, the Office of Regulation Policy and Management (02REG),
which is responsible for centrally managing development and amendment
of all VA regulations. This office supervises major regulation rewrite
projects for the Department, including an ongoing project to reorganize
and rewrite all of the compensation and pension regulations in part 3
of Title 38, Code of Federal Regulations (CFR). It also is responsible
for implementing the Federal Government's e-rulemaking initiative and
operating the Federal Docket Management System (FDMS) for the
Department.
Offices of Regional Counsel personnel comprise the remaining 60
percent of OGC's FTE and provide legal services to the Department's
field facilities in a broad spectrum of legal practice areas. Regional
Counsel attorneys, and the paralegals and legal assistants supporting
them, adjudicate tort claims, including claims of medical malpractice,
represent the Department in administrative proceedings involving
discrimination complaints and appeals from employee discipline, provide
the full array of contract law services, advise and assist regarding
the Department's research corporations and related issues, provide
ethics training and review of confidential financial disclosure
reports, provide preventive law training, prepare opinions and
generally advise Department managers regarding a multitude of legal
issues.
Management Reforms and Innovations
The Office of the General Counsel has undergone a number of
significant organizational changes in the last 15 years. In 1995, OGC
reduced the number of its field offices from 56 districts to 23 regions
to combine areas of geographic responsibility to better serve our VA
clients.
In 2003, OGC launched its own case and time management system,
General Counsel Legal Automated Workload System (GCLAWS). Using GCLAWS,
our practitioners create electronic case files, complete with file
attachments for key documents and time entry information to document
case management. GCLAWS also contains a robust report generation
capability to assist OGC users, supervisors and OGC senior management
in tracking cases, spotting trends, etc.
In 2008, OGC built the capability to provide contract legal support
to VA's field activities to improve the quality of solicitations and
contract awards. Each office of regional counsel now has at least two
contract law attorneys. When used to their maximum advantage, the legal
support begins before the solicitation and continues through the award,
including any protest actions. OGC is also available to advise on
contract-administration issues.
OGC implemented a robust client-survey program in 2003 and has used
the feedback to deliver our clients the training, preventive-law
guidance, and key information about what services we provide and who
among us provides them.
We focused similar attention on our greatest resource, our
employees. We conducted employee surveys in 2009 and again in 2010. We
have provided training to our leaders to maximize use of the feedback
to improve where needed and understand better why we are succeeding in
other areas so we can sustain the success.
Strategic Outlook
Also in 2008, OGC published its first strategic plan. We built the
plan to align our operations with those of our clients. We understand
strategic planning is not a static event. Instead, it requires
continual review and updating to ensure the plan aligns with changes in
Departmental priorities.
As stated in the plan, OGC's mission is to provide expert, timely
and effective legal advice and representation to the Department of
Veterans Affairs. While we move to implement our defined mission, the
following vision lights our path: to be the premier Federal legal
organization--unified, national and world class--composed of talented,
dedicated professionals, working together to support the Department's
mission of service to our Nation's Veterans.
The OGC strategic plan lists our core values, the principles that
guide our organization.
Honest--we will preserve our integrity and that of the
Office of General Counsel in all of our dealings.
Ethical--our practice reflects the highest ethical
standards in the legal profession. We demand the highest level of
awareness of and compliance with all ethical standards applicable to
the Department.
Mission First--Veterans have earned our gratitude and
respect. We provide legal services that foster just and fair treatment
of Veterans and their families through the faithful execution of the
laws, regulations, and policies of the Department.
Professional--we are a highly-skilled, diverse and
responsive national law office dedicated to providing timely legal
service to the Department. We are responsible and answerable for our
professional decisions and actions. We treat everyone with respect and
dignity.
Proactive--we are committed to open communications with
our associates, stakeholders and clients. To best serve our clients, we
are committed to and encourage constructive and early engagement on a
wide range of programmatic and legal issues. This can help resolve
potential issues before they become legal problems, and result in a
more comprehensive policy-formulation process within the Department.
Excellence--we strive to perform at the highest level of
competence and to exceed the expectations of our clients and
stakeholders. We seek to continuously improve our services and skills.
Transparent--we strive to improve service by making our
organization, legal and business processes accessible to and
understandable by our clients and stakeholders.
Stewardship--we exercise responsible stewardship of
human, financial, and other resources, as well as data and information
entrusted to us. We embrace innovative technology to maximize our
effectiveness and resource management.
Earlier this year, we began the process of reviewing our strategic
plan to ensure it remains relevant and aligned with the Department's
operations, particularly given the focus on transformation articulated
by both the President and Secretary Shinseki, and the creation of a new
VA Strategic Plan.
The OGC Strategic Plan and our commitment to its many elements
promote the concept of a unified national law firm. One key aspect of
the Strategic Plan involves greater collaboration and sharing of
information within OGC to improve the consistency of our legal guidance
and the speed with which we deliver it. This fundamental concept drives
many of our current initiatives including Geographic Cooperatives,
Specialty Panels and regional training events for OGC personnel.
A stable workforce and timely and effective information technology
support are critical to achieving our goal of a truly unified national
law firm. Staffing is a paramount concern because over 90 percent of
our budget involves payroll and related expenses. Similarly, access to
information, current and historical, logically organized and easily
retrievable, is critical to our national law firm goal.
Current Challenges
Meeting Court of Appeals for Veterans Claims (CAVC) Filing Deadlines
OGC attorneys represent the Secretary in all appeals taken to the
CAVC. As the Subcommittee is aware, the number of cases filed in that
court has been steadily growing over the past several years. OGC's
ability to increase staffing has not always kept pace. Fortunately, the
FY 2010 budget increase for our office has permitted us to catch up to
this workload. The FY 2011 VA budget request for OGC would allow us to
stand up another litigation team to deal with the expected further
growth in new CAVC cases.
The CAVC is coming off a record-setting year in which it received
4,725 new cases and we are now filing approximately 2,000 pleadings per
month. With the additional attorney and support staff we have been able
to add in FY 2009 and 2010, our average caseloads per attorney are now
down to 47 active cases. Experience has shown that when our average
caseloads exceed 50, we have difficulty staying current.
This is a high priority for us and while we realize there will
always be some circumstances beyond our control requiring extensions to
file, our goal is to reduce these requests to the minimum necessary.
Supporting VA Acquisition Activities
A second major challenge is to address the evolving need for legal
support in the acquisition process. The Department's history shows it
was slow to realize the value that attorneys could bring to the
procurement arena. Fortunately, OGC's role, as well as the contracting
function itself, is being buttressed, and this is a focus of the
Secretary's initiatives to modernize VA.
In the early 1990's, as now, VA was one of the largest procurement
agencies in the Federal Government. There were several hundred
contracting locations and nearly 2000 contracting officials who
annually awarded tens of thousands of contracts totaling several
billion dollars in value. These contracts included construction,
supply, service, information technology, resource sharing, and
interagency agreements. Yet all of the legal support for contracting
was provided by Professional Staff Group V, located in Washington D.C.,
along with three attorneys out-stationed at the National Acquisition
Center, in Hines Ill. The VACO staff consisted then of fewer than 12
staff attorneys, and three supervisors.
The role of the attorneys in individual procurements was limited to
reviewing certain high-dollar solicitations and other documents per the
dictates of the Federal and VA Acquisition Regulations, litigating
protests at the Government Accountability Office and claims at the
Board of Contract Appeals, and providing advice when requested by the
various contracting and program officials. There was no formal role for
attorneys in the contract-formation process, including the selection of
awardees, or in the contract-administration process. Moreover, existing
VA attorney staff were unable to focus exclusively on contracting
assistance as they also maintained responsibility for real-estate and
environmental matters, regulation and policy reviews and various
additional activities. In the mid-1990s and early 2000s, three more
attorneys were assigned to support the Austin Automation Center and
three attorneys were located at field locations to support construction
and supply activities.
The Department reexamined its acquisition process in 2007 and
decided to strengthen attorney support to VA procurement activity. In
that year, OGC trained an attorney in each Office of Regional Counsel
in contract law. In 2008, twenty five additional attorneys were
assigned to each of those offices, allowing OGC to transfer
responsibility for legal support for contracts awarded by field
activities from PSG V to our 22 field offices. Four additional PSG V
attorneys have been added to support the national contracting function
performed in the Office of Acquisition, Logistics and Construction
(OALC) headquarters office.
The Regional Counsel contract-law attorneys are each assigned
expert PSG V mentor attorneys with whom to work. The expansion of the
Regional Counsel attorney staff was particularly timely in view of
VHA's subsequent consolidation of its local contracting actions first
at the VISN level, and later at regional levels--consolidations OGC was
well situated to support. In addition, in 2009, concurrent with the
establishment of the Technology Acquisition Center in Eatontown, NJ,
OGC's PSG V established a new section to provide dedicated legal
support to VA's information technology acquisition function. This staff
consists of 14 attorneys, ten in Eatontown, NJ and four in Austin,
Texas, and an on-site supervisory attorney at Eatontown.
The growth of our procurement-attorney corps has permitted an
expanded role for them in the acquisition process. OALC requires
Contract Review Boards (CRB) in all high-dollar procurements and
utilizes Integrated Product Teams (IPT) to prepare and conduct many of
those acquisitions. Those innovations greatly increase the demand for
legal support. For example, CRBs provide a legal review of the entire
procurement process for an acquisition prior to the award decision
being made, an excellent means for identifying potential flaws. Even at
the earlier stages of an acquisition, there is an increased demand to
use IPTs to develop VA's requirements, with legal counsel participating
in the development of acquisition strategy and the creation of the
solicitation, evaluation criteria, and statement of work. We are glad
to have become full and active partners in VA acquisition activities.
OGC continually explores ways to improve its operations, and is
implementing key measures every day. These include increasing focus on
attorney development and coordination, and leveraging technology so
attorneys can more effectively communicate through a number of means,
as and when needed. We also have implemented a new SharePoint Web site,
which enables each OGC attorney to stay ``patched in'' on the latest
developments within each OGC Professional Staff Group and Regional
Counsel Office. The SharePoint Site also contains a search vehicle that
enables attorneys to seek and retrieve past legal opinions and memos.
We also have enhanced OGC's regional and national training programs,
and instituted a new OGC leadership development program to ensure OGC
is poised to retain its best and brightest.
OGC is pointed in the right direction and working hard. As the
Department moves forward to centralize aspects of its procurement
activities, our office will position itself to provide the best
possible legal services.
That concludes my opening statement and I ask that it be entered
into the record. Mr. Chairman, I look forward to whatever questions you
and other Members may have.
MATERIAL SUBMITTED FOR THE RECORD
U.S. DEPARTMENT OF VETERANS AFFAIRS
FOLLOWUP INFORMATION REGARDING VA EMPLOYEE SURVEYS
The information below contains the questions from the VA's employee
survey. The table at the end contains a summary report regarding the
survey responses for the 2 years VA has conducted the survey, 2009 and
2010.
VA converted the answers to a 5-point scale, assigning the highest
positive score the value of 5 and 1 for the lowest score, excluding
``Do not know'' as an answer when it is available.
For the 2009 survey results, the average scores are missing for
three questions because VA did not ask those questions until the FY
2010 survey. The questions involve the Organizational Assessment topics
of ``Engagement'' and ``Psychological Safety'' and the Culture question
regarding ``Enabling''.
__________
VA ALL EMPLOYEE SURVEY
OVERVIEW:
The purpose of this survey is to collect information on your
perceptions of the workplace and your satisfaction with the Department
of Veterans Affairs. Please answer all of the following questions
thinking about your experiences over the past six (6) months.
Completing the survey is completely voluntary, but your help in
responding to the survey is very important. By voicing your opinion you
can influence your work destiny and assist all of us in making changes
where needed. The survey is completely confidential and anonymity is
protected throughout the process. Thank you for taking the time to
answer this survey. Your opinion is very important to us. The
usefulness of the survey depends on the frankness with which you answer
each question.
DEFINITIONS:
Several questions refer to our law firm, senior managers, managers,
supervisors, offices or clients. Use the following definitions when
answering questions referring to these terms:
Law Firm: The component organizations of the Office of General
Counsel, i.e., Professional Staff Groups, 02 Reg., 22 Offices of
Regional Counsel and detailed OIT professionals.
Senior Managers: Those in executive positions who supervise
managers, i.e., General Counsel, Deputy General Counsel.
Managers: Those in management or executive positions who supervise
first-line supervisors and team leaders, i.e., Assistant General
Counsel, Principal Deputy Assistant General Counsel, Regional Counsel.
Supervisors: First-line supervisors; those who are responsible for
employees' performance appraisals and leave approval, i.e., Associate
General Counsel, Deputy Assistant General Counsel, Assistant Regional
Counsel.
Office: Professional Staff Group, 02 Reg., Office of Regional
Counsel or detailed OIT professionals. Please think of this office when
answering questions about offices in the survey.
Clients: Anyone who uses or receives the services that your office
provides.
Note: Please do not use your browser back or forward buttons as
this will cause you to lose previously entered data.
In what component of the Office of the General Counsel do you work?
VACO
Regional Counsel Office
Please select the appropriate office.
Front Office
PSG1
PSG2
PSG3
PSG4
PSG5
PSG6
PSG7
02REG
VACO OIT Professionals
Please select the appropriate office.
Region 1 (Bedford)
Region 2 (Brooklyn)
Region 3 (Baltimore)
Region 4 (Philadelphia)
Region 5 (Atlanta)
Region 6 (Bay Pines)
Region 7 (Cleveland)
Region 8 (Nashville)
Region 9 (Jackson)
Region 10 (Hines/Chicago)
Region 11 (Detroit)
Region 12 (St. Louis)
Region 13 (Temple/Waco)
Region 14 (Houston)
Region 15 (Minneapolis)
Region 16 (Denver)
Region 18 (San Francisco)
Region 19 (Phoenix)
Region 20 (Portland)
Region 21 (Buffalo)
Region 22 (Indianapolis)
Region 23 (Winston)
Regional OIT Professionals
JOB SATISFACTION INDEX
Please select the answer which corresponds to your current level of
satisfaction.
Compared to what you think it should be, how satisfied are you with
the type of work that you currently do?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the amount of work that you are able to accomplish?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the amount of pay that you receive?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
relationships you have with your coworkers?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the quality of direct supervision you receive?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the quality of managers?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the number of opportunities for promotion?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
working conditions in your job?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied do you think
the clients of your organization are with the products and services it
provides?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the amount of praise that you receive?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, how satisfied are you with
the quality of work you provide to the organization?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
Compared to what you think it should be, what is your current level
of satisfaction with your job?
Not at all Satisfied
Not Very Satisfied
Neither Satisfied Nor Dissatisfied
Somewhat Satisfied
Very Satisfied
If you have worked in the same office for the previous 24
consecutive months, please select the response which corresponds to
your overall level of satisfaction compared to what it was 2 years ago.
If you have not worked in the same office for the previous 24
consecutive months, please select ``does not apply''.
Compared to what it was 2 years ago, how is your overall level of
satisfaction with your job?
Much Less
Somewhat Less
About The Same
Somewhat More
Much More
Does Not Apply
ORGANIZATIONAL ASSESSMENT INVENTORY
Please answer all of the following questions thinking about your
experiences over the past 6 months.
Your office consists of the individuals who report to your
supervisor.
Indicate the extent to which you agree or disagree with each of the
following statements by selecting the appropriate response. Please use
the ``do not know'' answer only if you feel you do not have enough
information to answer the question accurately.
My manager/supervisor is fair in recognizing individual
accomplishments.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
My manager/supervisor is fair in recognizing team accomplishments.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
In my office employees are rewarded for providing high quality
products and services to clients.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
I am given a real opportunity to develop my skills in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
New practices and ways of doing business are encouraged in my
office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Products, services and work processes are designed to meet client
needs and expectations.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Clients of my office are informed about the process for seeking
assistance, commenting, and/or complaining about products and services.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Managers/supervisors set challenging and yet attainable performance
goals for my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
People treat each other with respect in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Disputes or conflicts are resolved fairly in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Employees in my office are involved in improving the quality of
products, services, and work processes.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Employees in my office have the job-relevant knowledge and skills
necessary to accomplish organizational goals.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Employees in my office have the appropriate supplies, materials,
and equipment to perform their jobs well.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Employees in my office are protected from health and safety hazards
on the job.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Managers/supervisors understand and support employee family/
personal life responsibilities in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
A spirit of cooperation and teamwork exists in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
My manager/supervisor reviews and evaluates the progress toward
meeting the goals and objectives of the organization.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
This organization does not tolerate discrimination.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Differences among individuals are respected and valued in my
office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
Managers/supervisors work well with employees of different
backgrounds in my office.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
My manager/supervisor provides fair and accurate ratings of
employee performance.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
If I were able, I would leave my current job because I am
dissatisfied.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
The safety of workers is a big priority with management where I
work.
Strongly Disagree
Disagree
Neither Agree Nor Disagree
Agree
Strongly Agree
Do Not Know
My job requires that I work very fast.
Strongly Disagree