Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

Alexei Dymovsky, a Russian police major, fed up with rampant corruption decided to use YouTube to report his grievances. He blew the whistle on his superiors forcing officers to investigate nonexistent crimes and arrest innocent people to improve crime statistics. Shortly after his video was posted Dymovsky was fired and jailed on fraud charges. After six weeks, the charges were dropped after the case became an embarrassment to the government.  Dymovsky's videos have been viewed over 2 million times and have encouraged other Russians to use YouTube to blow the whistle on corruption.

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The Jamaica Gleaner News is reporting that parliamentarians pushing a new whistleblower protection are facing opposition. The majority's latest draft of the proposed bill will protect whistleblowers only if they have made their disclosures through certain official channels. If any officials in any of those channels happens to be one of the wrongdoers, whistleblowers will face a choice between angering their antagonist with ineffective disclosures, or making a wave with outside channels and losing legal protections. National security information could go only to the government minister, or prime minister.

Opposition Senator K.D. Knight objected to the bill's reliance on government officials to do the right thing.  "I am most unhappy," he told the Gleaner. Member of Parliament Clive Mullings complains that requiring private sector employees to make disclosures to their employer for an initial determination before making other reports will discourage employees from coming forward.  Ohio's whistleblower law, ORC 4113.52(A)(1)(a) has a similar provision that makes the law particularly weak. Whistleblowers need the freedom to raise their concerns through the channels that will be most effective for the circumstances they encounter. If a whsitleblower picks one means to raise concerns about illegality, don't we want to protect that whistleblower even if the employer might argue that another channel would be better?  We should protect whistleblowers when they use any channel to raise a concern about any danger to the public.

I can imagine some Jamaican officials thinking that a whistleblower bill would be a good government thing to do.  Then, when they get to writing the bill, people in power applied all their talent and resources to preserve their strings of power, and limit a whistleblower's opportunities to challenge them. I recall the United States Senate experiencing something similar with the Whistleblower Protection Enhancement Act (WPEA), S. 372. I am reminded of Frederick Douglass' famous words, "Power concedes nothing without a demand. It never did and it never will."

On Thursday, the Gleaner ran a letter to the editor by Christopher Pryce:

A whistle-blower is a person who exposes wrongdoing that is taking place in an organisation, or raises concern about some breach of conduct classified as violation of law, regulation or rule that can be a threat to the public interest, e.g. fraud, tax evasion, price-fixing, corruption, occupational safety violations.

And like all crimes, the impact extends beyond the company, organisation or the government. It reaches to and affects us all as entrepreneurs, as investors, as consumers, as employees, as citizens. Hence, we are all stakeholders in this matter and the widest possible public-education efforts should be undertaken to inform the citizenry, and cause the best insights and considerations to be presented to the joint select committee.

Here! Here!

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Budi Suharto (right in photo) visited me at the National Whistleblowers Center today.  Mr. Suharto is the Head of Bilateral Cooperation II Section of the Ministry of Finance of the Republic of Indonesia. We discussed how in both the United States and in Indonesia, recent criminal prosecutions of whistleblowers raise a concern that other employees with information about corruption may be discouraged from coming forward. In the United States, the prosecutions of Bradley Birkenfeld and Thomas Drake, and the detention of Bradley Manning, remain active deterrents against whistleblowing. We discussed my recent submission to the United Nations Universal Periodic Review (UPR) of the United States. Attachment B to that submission contains citations to studies showing that employee reports are the best way to detect fraud, corruption and other violations of law.  In searching for ways to detect and deter corruption, protecting whistleblowers and encouraging them to come forward is a good starting place.

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The Jamaican Senate is scheduled to debate a comprehensive whistleblower bill this Friday. Justice Minister Senator Dorothy Lightbourne released the proposed text of the Protected Disclosure Act (Whistle-blower Law) 2010, according to Jamaica Observer. The bill fulfills a 2007 election promise of the Jamaican Labour party.  It would protect both public and private sector employees, including independent contractors and non-profit organizations.  It would require employers to designate an official who would be responsible for investigating whistleblower disclosures. The bill would also make it a criminal offense to retaliate against a whistleblower, and provide a witness protection program. However, the bill would not protect disclosures that violate attorney-client or medical privileges, the Official Secrets Act, or the Corruption Prevention Act. Debate is scheduled to begin this Friday.

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The Ghana Anti-Corruption Coalition and the British High Commission in Accra (the British Embassy) have published A User's Guide to the Whistleblower as part of their efforts to eradicate corruption. The 34-page booklet is inspired by a call of Ghana's President, John Evans Atta Mills, to make the penalties for corruption high enough for deterrence. Professor Kenneth Agyemang Attafuah, an editor of the booklet, told the Ghana News Agency (GNA) that corruption goes beyond giving and taking bribes. In addition to economic crimes, "many forms of unlawful and improper conduct negatively affect Ghana's development." 

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The Council of Europe Parliamentary Assembly has adopted a resolution to protect whistleblowers. Drafted by the Assembly's Committee on Legal Affairs and Human Rights, the resolution expresses appreciation for whistleblowers who "stop wrongdoings that place fellow human beings at risk, ... strengthen accountability and bolster the fight against corruption and mismanagement, both in the public and private sectors." The resolution responds to the fear of reprisals, and the risk of official inaction after wrongdoings are disclosed. The Parliament looked favorably on a recent British law protecting whistleblowers, and on the laws of the United States (apparently unaware of the patchwork nature of our laws). By a vote of 21 to 0, the representatives agreed that:

Whistle-blowing has always required courage and determination. But “whistle-blowers” should at least be given a fighting chance to ensure that their warnings are heard without risking their livelihoods and those of their families. Relevant legislation must first and foremost provide a safe alternative to silence, whilst avoiding offering potential “whistle-blowers” a “shield of cardboard” which would entrap them by giving them a false sense of security.

Europe now calls for protection of media sources and "against criminal prosecution for defamation, breach of official or business secrecy, and protection of witnesses." The full text of the resolution, and a few of my comments, are in the continuation of this posting.

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Sandra Obradovic, leader of Trade Union of Aluminum Plant of Podgorica (KAP) in Montenegro, was fired for participating in a round table organized by anti-corruption organization MANS (The Network for Affirmation of NGO Sector).  Ms. Obradovic is a strong advocate of compliance with labor laws and “green regulations” in her job, even though she faced constant pressure from management to stay silent on these issues.

At the round table, Ms. Obradovic spoke about the harassment she was experiencing at the workplace in front of the round table participants, which included members of the Montenegro government and several other reputable EU officials.  Ms. Obradovic timely informed her management that she would be leaving work that day to perform her trade union activities and was cleared to attend. As her discussion was widely publicized in the media, KAP was well aware of her participation as the trade union leader.

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The Star of Penang, Malaysia, reports that parliament there has passed a new Whistleblower Protection Bill. Unfortunately, the bill only protects informants who provide confidential information to the government. The Star rightfully inquired of the government why other disclosures would not be protected. Deputy Minister in the Prime Minister’s Department Datuk Liew Vui Keong answered,  “We have to distinguish the matter involved in Balasubramaniam and Raja Petra’s case. They are not whistleblowers because they re­­vealed their identity. They told the world who they were. A whistleblower is someone whose identity we don’t know.” Obviously, this is a narrow view of whistleblowing that I do not share.

Liew also told The Star that a person could not seek protection under the new Act when he exposed information to the media. He added that protection for the informant would be withdrawn if the informant exposed it to the media after disclosing the information to enforcement agencies. This view is contrary to the majority view in American courts: going to the media is often the most effective way to get the government to take action.

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Today the National Whistleblowers Center submitted a statement of concern about whistleblower protection in the United States to the United Nations' Commission on Human Rights, Universal Periodic Review (UPR).  It alleges that the US falls short of its international obligations by jailing whistleblowers like Bradley Birkenfeld, and by failing to protect whistleblowers in federal employment, the private sector, and internationally. A copy of the submission is available here.  With it, I submitted Attachment 1 listing the international obligations to protect whistleblowers, Attachment 2 about the effectiveness of whistleblowers, and Attachment 3, a report of the Ethics Research Center.

The UN's working group will conduct a hearing on the submissions in November or December. In the meantime, the United States Department of State will have time to review and comment on the submissions. Perhaps the State Department will agree that U.S. law falls short on whistleblower protection. Perhaps it will offer some explanation. Perhaps it will ask U.S. Senators to dump the poison pills in S. 372 and adopt H.R. 1507 as the Whistleblower Protection Enhancement Act. Perhaps it will ask President Obama to pardon Brad Birkenfeld. It is good that the UN has a process in which member states are called to account on ways they can improve their human rights record.

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The administration of Australia's Prime Minister, Kevin Rudd, announced plans this week for a new whistleblower law to protect Commonwealth employees. In 2008, the Rudd administration asked Australia's House of Representatives Standing Committee on Legal and Constitutional Affairs (the Committee) to report on its recommendations for a model whistleblower protection bill. A year ago the Committee issued its report.  Now the Rudd administration has responded. “Australia’s federal laws currently offer very few protections for public interest disclosures. The Rudd Government’s response moves to change that.” Out of 26 recommendations, the administration is accepting 10, accepting 11 more in part, and rejecting only four. The administration has announced that it hopes to have the final legislation enacted this year. Overall, the recommendations call on employees to raise concerns through proper channels, but recognizes exceptions in which going to other authorities or the media will be protected. If a government worker experiences retaliation, the law will call on the employing agency to correct it.  If necessary, the employee can go to the Federal Ombudsman for relief. The Ombudsman could call on the Federal Police for an investigation, and then order the agency to provide reinstatement and other make whole remedies.

Our colleague, Peter Bennett of Whistleblowers Australia, reports that the proposals provide some significant improvements (such as protection for going public in some circumstances), but still leave some areas unprotected (such as universities).

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