Should proof standard be changed in VA whistleblower cases?

We underscored in our immediately preceding blog post the collective headache that principals at the U.S. Department of Veterans Affairs are experiencing owing to whistleblower-linked woes. We noted in our Hilder & Associates September 9 entry that the VA has come in for withering criticism recently following its demonstrably failed vow “to better protect whistleblowers.”

Rory E. Riley-Topping has a recipe for curing that ill. She states that the standard of proof relevant to whistleblower allegations concerning the agency should be materially adjusted.

Riley-Topping has some vetted credentials that arguably give her the right to weigh in on VA shortcomings and to focus discussion on adjustments concerning how whistleblowing is dealt with at the agency. She commands relevant legal experience advocating for veterans in both the public and private sectors.

In a nutshell, here’s what Riley-Topping thinks: The VA’s whistleblower system is grossly ineffective, if not fatally flawed. Its stated protections for individuals who risk reputations and careers to spotlight fraud against the public are largely illusory; in fact, she says, retaliation more than protection is too often the outcome for a whistleblower.

That must change, with Riley-Topping stating that the standard of proof governing such matters must be tilted more favorably toward individuals bringing claims.

That is, the current “preponderance of the evidence” norm (a standard the U.S. Supreme Court has stated places a “sharing of the risk of error in roughly equal fashion” between opposing parties) should be shelved. Riley-Topping states that there is a flatly “unequal power dynamic” between whistleblowers and the entities they target that must be altered for justice to more routinely avail.

That can be achieved, she says, if VA principals were legally tasked with giving whistleblowers the benefit of the doubt when they come forward. It is reasonable to assume initially that they are telling the truth, given the heavy risks they assume when alleging misconduct on a large scale.

Questions or concerns regarding the subject matter of this blog post can be directed to a law firm with a proven record of diligent whistleblower advocacy.