Confessions of a Virginia Whistleblower

Written for Bacon’s Rebellion by James C. Sherlock

I decided last week in a paroxysm of good citizenship to contact the Virginia Inspector General (IG) to report wrongdoing by state officials.

State Inspector General Mike Westfall

I have a considerable list centered around the failure of many state officials to carry out their longstanding, formally-assigned duties pre-COVID to plan for a pandemic emergency and exercise those plans to mitigate the effects of such an occurrence.  

My complaints are based on Virginia Executive Order No. 42  Promulgation of the Commonwealth of Virginia Emergency Operations Plan and Delegation of Authority. It was issued by Governor McDonnell and reissued by Governor Northam.

An actionable component of that Order is Hazard-Specific Annex #4 Pandemic Influenza Response (Non-Clinical) was published in August of 2012 (the Annex).  It contained prescient predictions about the course of a pandemic and directed specific agencies to prepare and exercise specific plans. Despite the clear language of the Annex, the plans were not written, personnel were not trained, exercises could not be conducted and systems were not tested under simulated stresses of a pandemic.

Those failures cost unnecessarily severe losses of life, suffering and economic distress among the citizens.  

There were also significant financial losses to the state and federal governments the level of which need to be explored by an outside auditor. The Annex projected major layoffs in a pandemic. VEC did not prepare, resulting in massive financial losses in COVID to both fraud — $40 million in fraudulent payments estimated by the VEC itself — and to overpayments (amount undefined) within Virginia’s unemployment insurance program. The unemployment system still is not working properly a year later.  

Unemployment claims processing is another one of those Virginia programs like COVID testing and vaccinations that ranked last-in-the-nation out of the gate during COVID.

There was, as we reported here, an apparent attempt to cover up the widespread misfeasance by hiding evidence.  The Virginia Department of Emergency Management pulled the Annex from its website immediately after I wrote here on March 31, 2020 of its existence.  

Unnecessary death, suffering, economic distress, massive losses of state and federal funds and an apparent coverup attempt. Call me a stickler for process, but these seem like issues worthy of investigation. Big picture, they seem more important than whatever did or did not happen with the parole board. The goal is to try to make sure they don’t happen again.

My timing could have been better.  

The IG nearly simultaneously got embroiled with a three-way controversy between himself, the Governor’s Chief of Staff, and the Attorney General about alleged wrongdoing in the parole board and who knew or reported what and when. Then it turned into a four-way controversy when the IG’s lead investigator filed for whistleblower status.  

The IG has said he believes his job may be in jeopardy. He has not yet been corrected in that presumption by the Governor, at least publicly.

Nonetheless, I have proceeded.  

Knowing exactly how to couch such reports to meet the bureaucratic requirements required a little detective work.

Virginia’s Fraud and Abuse Whistle Blower Protection Act § 2.2-3009. Policy.

“It shall be the policy of the Commonwealth that citizens of the Commonwealth and employees of governmental agencies be freely able to report instances of wrongdoing or abuse committed by governmental agencies or independent contractors of governmental agencies.”

Seems straightforward enough.  

Then I had to find out find out what “wrongdoing” means to the government of Virginia. The definition of that term is found in the Virginia Administrative Code

“Wrongdoing” means a violation, which is not of a merely technical or minimal nature, of a federal or state law or regulation or a formally adopted code of conduct or ethics of a professional organization designed to protect the interests of the public or an employee.

“Wrongdoing” includes (i) any violation of any law, rule, or regulation; (ii) gross mismanagement; (iii) a gross waste of funds; (iv) an abuse of authority; or (v) a substantial and specific danger to public health or safety.

Abuse is defined in this context as “an employer’s or employee’s conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government sources.”  The “or omissions” part comes into play here.

I have knowledge of some of the types of wrongdoing described — gross mismanagement, waste of funds, abuse of authority and a demonstrated substantial and specific danger to public health. So I have begun to file detailed complaints through the OSIG hotline email connection.  

They deserve to be investigated, accountability assigned and the issues corrected. I hope those things happen.  

The person I have been dealing with at the Office of the State Investigator General (OSIG) has been patient and helpful. Her job is to screen complaints and she appears to be good at it. 

But the IG must decide whether to open investigations. I asked his press officer yesterday whether the office is hamstrung by the turmoil surrounding the parole board affair. The official answer:  “No comment.”

 So, I am a citizen whistleblower. I think.