December 10, 2010 at 7:38 pm #117720
Two thought-provoking reports related to whistleblowing came out this week, released within 24hr of each other; one American and one Canadian.
The American one is from the Merit Systems Protection Board in DC, and is a report for general release: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=557972&version=559604&application=ACROBAT
The Canadian one is a report from the Office of the Auditor General, presented to Parliament: http://www.oag-bvg.gc.ca/internet/docs/parl_oag_201012_e_34448.pdf
What links them is the general theme of weaknesses in the handling of whistleblowing by federal employees. What makes them more thought-provoking, though, is what the weaknesses ARE.
I should preface this by noting that neither report has anything strong, or even critical, to say about the legislation underlying what is being reported. Rather, what they allude to are largely unanticipated weaknesses in how disclosures of wrongdoing are handled; at least weaknesses they may not be fully anticipated by those doing the disclosing.
The MSPB report outlines the many codified legal constraints there are on what can constitute a wrongdoing, a disclosure, an appropriate mechanism for disclosure, and reprisal for disclosure. Some of it may surprise you, and judging from the cases cited, surprised a great many plaintiffs in past.
While it may disappoint many readers when they learn of such limitations, I can’t think of a single jurisdiction where the corresponding legislation works in any ideal way. And of course, a big part of that stems from the need to have a functioning public service in which managers do not have to constantly worry abut staff derailing things. Whether the right balance between employee rights and management needs has been struck is something I leave up to you and future legislators. But the bottom line is that there will always be some caveats built into any legislation or policy related to disclosure of wrongdoing, and there will always remain the challenge of successfully conveying those caveats to the very employees who rely on the legislation to protect them, and assuring they are fully comprehended by all those with a stake in them.
The Canadian report is a very different beast, and IS more critical. Rather ironically, it was prompted by disclosures to the Auditor General of wrongdoing at the Public Sector Integrity Commission – the federal organ that was established for the very purpose of disclosure of wrongdoing and protecting whistleblowers – by former employees. I won’t go into the dirt.
The bottom line here is that protection of whistleblower depends on who is judging the disclosure and doing the protecting, as well as what the legislation dictates. In this instance, it would appear from the AG’s report that the Commissioner herself was not a stellar example of what the leadership of such an organ ought to be……to put it mildly. Of course, knowing that the Canadian legislation is based on corresponding U.S. legislation, and having read the many ways that a whistleblower can fall through the cracks in the MSPB report, I found myself a bit less critical of the former Commissioner (she, um, “retired” prematurely) than our Auditor general was. Not that I agreed with the former Commissioner’s judgment or degree of thoroughness, but I was able to see how she could still squeeze her judgments through the existing legislation at times.
Much was made in the report, and the news, and certainly by political opponents of the government that appointed her, that in the past 3 years, not a single disclosure brought before the PSIC was supported by the Commissioner. If you read the MSPB report, though, you’ll find that across the 1979-1989 period, spanning the Carter, Reagan, and Bush administrations, when an earlier form of whistleblower protection legislation was in effect, the Office of Special Counsel also found no supportable cases to bring forward. That’s ten years in a public service ten times the size of ours. So, nothing in 3 years does not shock me, personally, and does not feel like compelling evidence about the current government, despite how many attribute it to that.
In any event, there’s your weekend reading. Fascinating stuff, very readable, and provides much food for thought. And of course, with the (in)famous Mr. Assange bringing whistleblowing front and center this week, very much on many people’s minds.
December 10, 2010 at 9:42 pm #117732
I agree with this report, and would like to see additional measures taken to protect the whistleblowers, and especially to protect them against retaliation.
For example, having a clear set of guidance as to what defines retaliation, and how that is determined would be a big help. I don’t know much about it, but I believe it is still far too subjective in terms of how MSPB makes that determination. I’d like to see something based on the whistelblowers’ past performance vs. new (and/or sudden)personnel actions coming from the managment team that was exposed. Would also like to see more support for transferring a whistleblower out of the organization with the alleged violations during the investigation (and after if that is his/her choice).
December 10, 2010 at 10:00 pm #117730
Well, to play devil’s advocate, imagine you are a manager with a strong difference of opinion with an employee who questions the wisdom of your expenditures or judgment on some other matter related to the work plan. The employee goes over your head and complains to your manager.
From your vantage point, the employee is a royal P.I.T.A., maybe even to the point of being abrasive, or at the very least someone who is hard for you to deal with or have a civil debate with. Okay, you’d rather not have to deal with that person, and the more you strive to avoid them by not including them in certain things, the more strident they get. Bit by bit, over the course of a year or more, you marginalize the employee, just to make your life easier. Now, I am not going to defend this sort of behaviour on your part (Shame on you! shame, shame, shame!), but does it fall squarely into the domain of retaliation that can be classified as directly connected to the protest and disclosure by that employee?
I think that’s a real problem. And while perhaps the definition currently incorporated in legislation could use some improvement, there is much that an employee might perceive as retaliation or harassment that is not so easily distinguished from other things. Certainly, the employee deserves better than that, but how do you achieve it?
My tongue-in-cheek header for this topic was deliberately chosen. Coaches call “time out” partly to rally the team, but often to stop the other team when they sense it might be gathering momentum. And whistleblowing should be about preventing something from happening, as opposed to mere tattling after it happens.
But how do you accomplish that while still permitting managers to respond to needs in a timely fashion? If they have to justify their actions to anyone who might be in a position to object, how much time is left over for their actual job? And if they don’t explain and justify to everyone, the odds are pretty good someone will draw their own inferences about something that doesn’t make immediate sense to them, and assume the worst. So do you encourage that person who assumes the worst and provide every protection possible? I’m not arguing for leaving them in the cold, but there is still this government to run/operate, and no government can afford to have the sword hanging over the heads otf managers all the time.
But of course, you and I would agree that neither can there be NO threat of disclosure. Finding that blessed middle is VERY hard.
December 11, 2010 at 10:42 pm #117728
I am far less concerned with processes that support management, as the odds are already heavily weighted in favor of those in powerful positions. I am far more concerned with protecting those who expose mis-managment, especially in times like these. My years of experience suggest that many (if not most) managers in gov’t are in over their heads, and have limited understanding of the technical implications of their decisions, the policy breaches that occur when they make bad decisions, etc.
The best way to deal with a P.I.T.A is to listen. That is the best way to learn. “Marginalizing” the whistleblower falls squarely into the domain of retaliation, especially if one of the prohibited personnel practices is taken as a result.
December 11, 2010 at 11:22 pm #117726
However, that said, I do agree with you that is far better to solve problems up front and at the root level rather than letting them escalate to the point where whistleblowing appears to be the best (or only) solution. In this era of ideation tools, there is no reason that employee voices shouldn’t be amplified and heard.
“bettermeans” an example of a new approach to management that is modern and agile. I’d like to see processes such as these, and tools such as “delib’s dialogue app” used with increasing regularity, not only to engage the general public in our decisions, but to engage employees in-house as well.
December 12, 2010 at 4:12 pm #117724
Oh, I agree with you wholeheartedly. I guess what I am attempting to convey is the thinking that goes into the drafting of such legislation and actual protection mechanisms of those making disclosures. And part of the thinking is to provide managers some measure of equal protection….when deserved.
One of the areas that I think is widely misunderstood amongst the rank and file is what the MSPB report groups as “debatable managerial decisions”. I certainly have no hard numbers to back me up, because no one is really collecting or publishing them, but I suspect this accounts for a substantial segment of what gets brought forward, either through local informal and ADR (alternate dispute resolution) mechanisms, or through formal mechanisms (relevant offices, tribunals, courts, etc). It might be a larger or much smaller proportion than I imagine it to be, but at the very least it is not insignificant.
My own feeling is that this happens because many managerial decisions, and the extenuating circumstances that drive them, for whatever reasons (usually neglect or expediency), are not made completely transparent to employees. But, be that as it may, it regularly happens that a managerial decision gets made that seems more than simply unwise to the employee; it seems downright stupid to the point of reflecting managerial incompetence, or perhaps criminally suspicious. I say, with a certain amount of embarrassment, that I’ve had suspicions about certain executive decisions in past, only to find out the backstory from insiders several years later, and realize it was just “dumb stuff”, rather than anything ac Macheavellian as I had assumed.
MSPB, and the courts, have clearly indicated that such “debatable” managerial actions – assuming there is nothing illegal or prohibited about them – are not a basis for a protected disclosure. So, if the employee who is enraged by this “debatable” decision by management won’t stop making noise about it, and management finds him/her to be a P.I.T.A. and someone they’d rather not have to deal with on a daily basis, whatever sidelining they do of said employee is not reprisal because it is not connected to a protected disclosure.
And there, I think, is a big part of the weakness in many whistleblower-protection laws. The employee holds an honest belief that what is transpiring is wrong, and feels a duty to disclose it. If the managerial action is assumed by management to be legitimate and not require defending, that simply leaves it opaque, and the employee is unlikely to desist. And THAT’S when they are perceived to have become a P.I.T.A., and is the most painful and unsatisfyingly-handled scenarios for whistleblower-protection laws and bodies to handle. The manager has not done anything wrong (at least initially), and the employee “misbehaves” on the basis of an honest belief.
Don’t look to legislation to solve that conundrum very easily.
December 12, 2010 at 11:38 pm #117722
I believe the whistleblower laws (and other related laws and policies that protect employees who disclose mis-managment via a wide variety of processes) state that as long as the allegations are made in good faith, retaliation is illegal, whether or not the mangement team was found to be in breach.
You must be logged in to reply to this topic.