Mark Hammer

I encourage people to go to the Merit Systems Protection Board site, and take a gander at two excellent reports they’ve published over the last year and a half ( http://www.mspb.gov/studies/browsestudies.htm ). One is Whistleblower Protection for Federal Employees, and the other is Blowing the Whistle: Barriers to federal Employees Making Disclosures. I recommend reading the first one…first.

One of the strongest themes to come out of the first report, and its extensive review of cases that had come before the courts, is that a great deal of what many employees believe to be whistleblowing, or the consquences thereof, is simply not protected by law. In many cases, this arises from a misunderstanding of what the law is, and how it defines protected disclosures.

Another aspect that is not stated explicitly in either report, but runs through all such legislation in any jurisdiction, is that it always also seeks to protect managers from frivolous or vexacious attacks or unwarranted disruptions in their work. That is, it strives to balance off the rights of those who make legitimate disclosures in the public interest, with the rights of managers to be able to do their work without having to look over their shoulder constantly. Many of the cases covered in the report resulted in rulings that fell under the general heading of “debatable managerial decisions”. That is, the manager did something which the employee felt was inappropriate or extremely unwise, but it was within the manager’s legal authorities, and did not threaten the agency’s ability to carry out its mandate. One of the other unstated facts is that there is much in government that is not made perfectly transparent to staff, and the rationale for actions or decisions clearly conveyed. The atmosphere is ripe for mistrust growing like mold on a damp windowframe.

The aspect that no legislation anywhere has been, or ever will be, able to grapple with successfully, is that disclosures are always socially divisive. So, your agency could lay out a gold-embroidered welcome mat for whistleblowing, but ultimately anyone who points a finger is obligating others to either side with them, or side with the proposed offender. There is rarely any neutral ground, unless one is very far removed from the actions or unit being disclosed. The law certainly dictates what is and isn’t acceptable legally, but it has no means to manage or finesse the etiquette surrounding intro-group relations. And while whistleblowers have weightier matters on their mind, the fact still remains that one of the things that brings anyone to work every morning is the cameraderie with their co-workers. All well and good to be Samson and bring down the house when the only other people in it are wrongdoers. Much much harder when the same roof caves in on your buddies as well.

My own feeling is that both legislators and public servants expect far too much from such legislation, simply because you can’t legislate a workplace culture. The objective should not be to make it easier for people to blow the whistle, but to make it less necessary for them to feel the need to do so. It’s like the difference between placing all your chips on coronary bypass surgery and transplants (the legislation) vs getting people to eat/smoke/drink less and get up off the couch once in a while (workplace culture). But enough from me. Do yourself a favour and read the reports.