April 24, 2012 at 4:23 pm #159358
Each week, GovLoop teams up with the Washington Post to query the government community about issues that are perplexing the public sector. This week’s question is:
Is Whistleblowing Really Welcome
Where You Work?
In light of the GSA spending scandal, agency staff have been encouraged to speak up if they see problems, and a non-profit is seeking to learn more about what protections are out there for employees trying to do the right thing.
- How comfortable does your agency make it for potential whistleblowers?
- Know any? How did things turn out for the employee?
As always, you can write a comment below or send a note to [email protected] to respond anonymously…or you can reply over on the Post! If you’re comfortable with being quoted, just say “You can quote me on that.” after your remarks. If you don’t approve, we won’t share. Thanks.
April 24, 2012 at 10:57 pm #159394
Forget whisleblowing. I’m even hesitant to comment on social networks. I personally don’t know any whistleblowers, but I applaud their courage to risk their livelihood based on principles. I hope that I have this courage, if needed. Thankfully, I have not witnessed any egregious acts or abuses of power. There should be an annual award for whistleblowers to show that it’s important to stand up for your principles.
I’m looking forward to hearing about our true heroes – whistleblowers.
April 25, 2012 at 1:08 pm #159392
My agency if you disagree with upper management your on the “LIST” so better to just sit back and keep your mouth shut.
April 25, 2012 at 1:16 pm #159390
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.
April 25, 2012 at 4:06 pm #159388
Well, to follow up on my earlier post, that’s more a matter of a non-consultative top-down workplace culture, isn’t it? And those kinds of workplaces don’t necessarily have to express any sort of hostility towards noncompliant employees; all they need to do is ignore input from anyone outside senior management or their preferred consultants.
Legislated whistleblower protection is no panacea for non-democratic authoritarian workplaces. Ideally, management consults so that it has all the information it needs to make wise decisions that have the fewest unanticipated repercussions, and it communicates, so that all relevant persons understand how the decisions were made and what factors weighed what in that decision-making process. And if that happened, then the only thing you’d need to blow the whistle on might be an employee that started embezzling or stealing computers at night to feed a gambling habit they kept hidden from co-workers.
April 26, 2012 at 1:18 pm #159386
I’m going to bet that those who work in agencies where whistleblowing is unwelcome will find that reporting of any kind of management corruption, employee abuse, bullying, discrimination will result in retaliation. Where this is the case, employees won’t be comfortable speaking up here… that is, unless already shoved out of the job and nothing to lose. If they’ve spoken up about unethical practices or abuse, and still have a job, then I’m guessing it’s in jeopardy, with managers, coworkers and HR watching them, and monitoring them online in effort to compile fodder to fuel justification for retaliation and constructive termination which is likely to follow. It’s unfortunate and I hope I’m wrong. I hope people do speak up, and hope agencies support them doing so, but this is my guess: most can’t speak up without serious repercussions, thus answers to this question may be skewed to the fortunate few who can have both a voice, and a job.
April 26, 2012 at 2:34 pm #159384
This is a good issue to raise on a continuous basis. The problems here never fully go away because the tensions here are ongoing and the spirit of openness required must be reinvigorated on a regular basis.
In my earlier professional life I spent 25 years as a public sector labor union rep. I was involved in dozens of whistleblower cases and followed hundreds of others.
Management attitude and agency culture are a big part of the equation, but can often turn on a dime when new political appointees come in to head agencies.
I urge institutional protections: collective bargaining agreement provisions, statutory protections (including hefty sanctions against those who try to enforce cultures of silence), and civil service code provisions.
April 26, 2012 at 2:54 pm #159382
Excellent points. I would also encourage using things like the Federal Employee Viewpoint Survey results as advance intelligence for markers of agency cultures that are predictive of enforced silence.
April 26, 2012 at 5:13 pm #159380
In my experience in over twenty years of city government whistleblowing was definitely unwelcome. While there are mechanisms in place [EEO officer, union rep.,] reporting of any kind of management corruption, employee abuse, bullying, discrimination will result in serious repercussions and undercover retaliation. Whistleblowers won’t get promoted, won’t be able to get transferred, won’t get picked for assignments that may showcase their talents, their ideas get discredited, before being appropriated, and worse they will be avoided by their co-workers. Their only protection is belonging to a union but if you are promoted to manager you lose that and you serve at the convenience of the commissioner. No one wants a whistleblower in their department- revealing their “problems”, and any support is only surface in nature. In my experience having a voice is a sure way to be tortured out of a job you can’t have both.
April 26, 2012 at 6:01 pm #159378
Please see paragraph 7 where whistleblowers are mentioned.
This addresses the workplace bullying and mobbing in the workplace, but whistleblowers are amongst those targeted.
Many are working to get legislation passed to prevent this behavior in the workplace and we can all join in the effort:
April 26, 2012 at 8:42 pm #159376
Anonymous from email:
I dont think whistle blowing is welcome anywhere. Although you will be people speak out about sometimes, but the reality is that no one wants to be the office or organization snitch. They get alienated by co-workers and black-balled for promotional opportunities. Even when they try to change jobs, they experience trouble once the potential future employer finds out about what they have done at their last job. I often wonder that if is really worth all the trouble because you just drew a bullseye on your back and forehead. I have never experienced this, but I have witnessed it in some of the most aggressive forms, so it makes you think was it really worth it? The people who are involved are either transferred, slap on the wrist, or nothing at all, so what has really been accomplished? Yes, it sounds negative, but this is the reality that I have witnessed and I am sharing my visual experience.
April 27, 2012 at 2:44 am #159374
Again, I strongly encourage reading the MSPB report. They make it pretty clear, or rather, summarize how the courts have made it pretty clear, that if you were not disclosing anything illegal, then by definition there can be no retaliation because there was nothing to disclose. Kind of a whistleblowing habeus corpus argument: no wrongdoing disclosed = nothing to retaliate for.
They also make it pretty clear that unless any actions taken against an employee for making a disclosure can be neatly compartmentalized and identified at points in time, OR clearly identified as being contiguous enough with the disclosure to be classifiable as retaliation, then it ain’t retaliation and the employee/discloser is not protected. So, an ongoing pattern of shunning, or perhaps arranging work assignments so that others got duties you were hoping for, might not be construed as retaliation or bullying. If it started months after a disclosure of wrongdoing was made, it might not count either.
I’m not saying the law is toothless. But it IS required to set very clear unambiguous criteria before sinking its teeth into the neck of an offender, just to avoid leaving the falsely-accused helpless. And that leaves a lot of room for human misbehaviour.
April 28, 2012 at 5:19 pm #159372
Good idea about the award. Whistleblowing needs the equivalent of a Nobel or Pulitzer prize. There might be something out there already, but if so it’s sure not publicized. Maybe whistleblowing needs the equivalent of a witness protection program.
April 29, 2012 at 4:34 pm #159370
It’s problematic. I believe there already is a provision in law in your jurisdiction that the whistleblower gets a kind of “finder’s fee” – a small percentage of the money saved by disclosing serious misspending or misappropriation of funds. That can exist partly by restricting the subject matter of disclosures to only money-related wrongdoing. It’s not at all clear what to do when the wrongdoing is not purely money-based.
But in general, whistleblowers do not want their disclosure to be identified as one done for anything but altruistic or stewardship motives. Remember, they would like to be able to go back to work on Monday morning, and anything that makes theiir motives suspect to others is something they would like to avoid.
I attended a town hall meeting in 2006 where a member of local Parliament trotted out the impending federal whistleblower protection legislation (seen here: http://laws-lois.justice.gc.ca/eng/acts/P-31.9/ ). Several high profile public sector whistleblowers were in attendance. The MP was advocating a $1000 award for whistleblowers to express gratitude, and all the actual whistleblowers were saying “Please do not do this. That’s not why we did what we did, and we don’t want anyone to think that.”
In our case, there was a different twist, but I think one which illustrates the conundrum. The legislation dictates that the disclosing employee should, where possible, use local mechanisms to address the perceived wrongdoing. Should that not resolve the matter, or should it not be possible to do so without fear of recrimination, the individual is encouraged to bring their disclosure to a central (highly understaffed for the caseload) authority. As originally conceived, the Commissioner of that central agency would have the authority to make the $1000 award to individuals whose disclosures were found warranted and significant. But it would only be those cases they knew of that had approached them. If the employee approached the (equivalent of) Assistant Undersecretary, made the disclosure, that executive said “We will NOT stand for that sort of nonsense/deception in our agency!”, and promptly nipped it in the bud (the wrongdoing, not the disclosure), that case would never get to the Commissioner in the central agency, and there would be no award. How long until people start going “Hey, how come THAT guy got a thousand bucks and a mention in the paper, and all I got was a handshake and a thank you? What am I, chopped liver?”.
Thankfully, the $1000 award clause was dropped from the legislation.
I understand the desire to show deep gratitude to whistleblowers. The motivation is sincere, but the effects are pernicious. The point is that awards have the potential to become very divisive and foster cynicism if you can’t pull it off flawlessly…and flawless is NOT what government is famous for.
Trust me, if the whistleblower did the right thing, hardly a day will go by after that where someone won’t clasp that person’s hand in both of theirs and say “I want to thank you for your courage and for what you did”. Most of those folks will be regular citizens, not officials posing for a picture. I don’t know that it gets much better than that.
April 29, 2012 at 7:10 pm #159368
Over my federal career, I have observed the reaction of several people to my whistleblowing (If the definition of whistleblowing can be described as pointing out misuse of power) Some agencies made some effort to “protect” me from retalition, others looked the other way, others, I believe, actively engaged in removing the “cause” of discomfort.
Perhaps one of the reasons that, over a 44 year career, I didn’t spend much longer that 5 or 6 years working within any single department
April 30, 2012 at 3:42 pm #159366
The Government Accountability Project (GAP) is a nonprofit organization that has represented government (as well as corporate) whistleblowers ranging from USDA inspectors to NSA employees since 1977, helping them expose corruption, waste, fraud, and other wrongdoing while protecting them against (unfortunately typical) retaliatory practices by agency higher-ups. Indeed, a lot is at stake for these brave truth-tellers who usually don’t plan on being a whistleblower, but simply refuse to stay silent in order to serve the public interest.
Last week, GAP attended and helped organize the 9th Annual Ridenhour Prizes, where whistleblowers and other truth-tellers were honored for doing the right thing despite immense pressure to keep quiet. It’s important that these honest individuals know that they have a community supporting them, even when all odds seem against them. Last year, former NSA employee (and GAP client) Tom Drake won the same prize for helping to expose a wasteful, mismanaged surveillance program that sacrificed Americans’ privacy. And what did he get in return? Drake was charged under the Espionage Act and faced decades in prison. But GAP helped build public support for Drake, with a massive media campaign that helped bring a collapse of the DOJ’s criminal case against him.
This year, a Ridenhour Prize went to Eileen Foster (also a GAP client), a Countrywide/Bank of America whistleblower who exposed the corrupt activities of company officials.
Other cases of whistleblower retaliation GAP has witnessed over the years have included employees being demoted, transferred across the country, and other forms of harassment and intimidation – just for doing their job. GAP continues to buttress the voices of truthful insiders, as well as work to improve federal legislation that protects government employees who blow the whistle. Learn more about whistleblower protection and GAP’s latest actions at whistleblower.org.
May 4, 2012 at 12:56 pm #159364
When whistleblowing is not properly embraced, the government of the entire galaxy can be put at risk. The acid tests for effective whistleblowing – http://brucelynnblog.wordpress.com/2012/05/04/embracing-whistleblowers. May the 4th be with you!
May 17, 2012 at 11:16 pm #159362
I’d say the situation on the ground for public servants in the U.S is similar to that in Australia. The difficulty is getting the conversation out in the open. It’s a practical question really. “Will I loose my job for speaking out?”
For the past moths some colleagues and I have been preoccupied with this very issue. You might like to cheek out my post Australian Taxation Office : Awesome abusive managerial culture exposed. I hasten to add that the problem is not confined to our Taxation Office by the way.
Anyway, I hope my post provides some useful insights that are useful to people.
October 5, 2012 at 5:13 pm #159360
As a government lawyer, I have twice been a whistleblower, both times resulting in proposals to remove me from federal service. The first was with DOI, where I testified at the Cobell Indian trust fund mismanagement trial. The Congress eventually settled the suit for $3.5 billion, and I received a “Courageous Lawyer Award” from the Oklahoma Bar, but I lost my job. The second was when I disclosed rampant fraud, waste and abuse at the International Boundary and Water Commission, for which I was removed and slandered, an action still on appeal more than 3 years later. Whistleblowers do it because they have no choice, but they should not expect the law to protect them, it doesn’t. The Merit Systems Protection Board and the Federal Circuit Court of Appeals reject 98% of whistleblower retaliation appeals, largely due to extreme deference given to findings made by agency attorneys masquerading as “administrative judges.” The amendments won’t change this. See Robert J. McCarthy, Paying the Price of Disclosure, WASHINGTON LAWYER (The District of Columbia Bar, October 2012), http://www.dcbar.org.
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