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

Tune in tomorrow at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

In the first half hour, David Colapinto interviews Steve Kohn about his recent trip to Bosnia and the broader European movement for stronger whistleblower protections.

In the second half hour, Richard Renner and Eric M. Gutiérrez, Legislative & Public Policy Director for the National Employment Lawyers Association (NELA) discuss the progress of two very important laws for whistleblowers, the Civil Rights Tax Relief Act (addresses unfair tax treatment of settlements and awards in employment cases) and the Arbitration Fairness Act (to prevent forced arbitration).

You can take action to protect whistleblowers by signing the petition.
 
Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

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Tune in today at 1:00pm EDT to Honesty Without Fear on Progressive Radio Network.

From Sarajevo, Bosnia, Steve Kohn interviews Bojan Bajic, the head of the Centre for Responsible Democracy and co-founder of Association of Whistleblowers Against Corruption about the growing movement to increase whistleblower protections in Europe.

They discuss the special threats international whistleblowers face - especially in developing democracies such as Bosnia-Herzegovian and in nations that have no whistleblower rights. Bojan Bajic describes what Bosnian whistleblowers face, and how they are organizing themselves to fight-back and obtain rights.

You can take action to protect whistleblowers by signing the petition.
 
Submit Your Question to be asked on air during the show or call in to 1-888-874-4888.

Missed last week's episode?? You can listen to the podcast.

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Just before last night's deadline, I submitted comments on modifications to the Department of Labor's regulations for corporate fraud whistleblowers. The Occupational Safety and Health Administration (OSHA) originally issued regulations at 29 CFR Part 1980 to govern its whistleblower program under the 2002 Sarbanes-Oxley Act (SOX). The modifications OSHA published on November 3, 2011, reflect changes made by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, and also make some policy changes. I made my comments on behalf of the National Whistleblowers Center (NWC) with helpful input from NWC Executive Director Stephen M. Kohn (especially on the issues of extraterritoriality and confidentiality).  My colleague Erik Snyder helped me finish the comments in time for last night's deadline.

OSHA's modifications reflect the new expanded time limit for filing retaliation claims. Section 922(c) of Dodd-Frank extended the statutory filing period for SOX retaliation complaints from 90 to 180 days. 29 CFR § 1980.103(d) now requires claims to be filed within 180 days of the date on which the employee became aware of the violation. Section 922(c) also protects the whistleblower's right to a trial by jury in cases where the employee removes a case to U.S. district court. Section 922(c) invalidates pre-dispute arbitration agreements that would keep whistleblowers from using the Department of Labor process or the "kickout" provision for going to U.S. district court. Section 922(b) of Dodd-Frank expaned SOX's coverage to include employees of nationally recognized statistical rating organizations (as defined in section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78c). My colleague Lindsey Williams, Advocacy Director of NWC, reported on these changes when Dodd-Frank passed in 2010.

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During this week's trip to Latin America, President Barack Obama has hit on a theme about the universal nature of human rights. Here is a paragraph from his speech on Sunday in Brazil:

But we also know that there’s certain aspirations shared by every human being: We all seek to be free. We all seek to be heard. We all yearn to live without fear or discrimination. We all yearn to choose how we are governed. And we all want to shape our own destiny. These are not American ideals or Brazilian ideals. These are not Western ideals. These are universal rights, and we must support them everywhere.

He said something similar yesterday in Chile:

And despite this region’s democratic progress, stark inequalities endure. In political and economic power that is too often concentrated in the hands of the few, instead of serving the many. In the corruption that too often still stifles economic growth and development, innovation and entrepreneurship. And in some leaders who cling to bankrupt ideologies to justify their own power and who seek to silence their opponents because those opponents have the audacity to demand their universal rights.

In July 2009, I blogged about President Obama's speech in Ghana: "We have a responsibility to support those who act responsibly and to isolate those who don't, and that is exactly what America will do."

I suggest that the best way to advance universal rights abroad is to live by them at home. Recall that in the previous Congress, President Obama put forward a version of the Whistleblower Protection Enhancement Act that would actually take away the existing legal protections for federal employees that raise concerns deemed to be minor or inadvertent. As to living without fear of discrimination or corruption, his bill would have divided federal employees so that national security workers would be dependent for their protection on the agency heads in charge of the operations about which concerns might be raised.

We might also remember that 600,000 U.S. citizens do not have the power to choose how they are governed because they happen to live in the District of Columbia. They cannot change their local constitution because an act of Congress sets out how they are governed. They have no representation in that Congress which imposes taxes they must pay. They cannot impose taxes on out-of-staters who work in their District (including me), and any laws their Council passes might be overturned by Congress.

It is good that the international flow of ideas includes what rights should be "universal." This call would ring less hollow if we saw those espousing them doing more to accomplish them in their home jurisdictions. I submitted a report to the United National Universal Period Review about ways in which U.S. laws fall short of international treaty standards for whistleblower protections. The U.S. Department of State chose not to answer it.

Whistleblowers everywhere will benefit if we can call our leaders to account for their treatment of whistleblowers, here and abroad. Instead of trying to pick specks out of the eyes of other countries, I invite President Obama to join with me in looking for the logs in our own.

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"The first thing we do, let's kill all the lawyers," says Dick the Butcher in Shakespeare's Henry VI Part 2. The famous quote conveys the idea that if you want to maintain power by suppressing the people, then lawyers are your enemy. The powers that be in Puerto Rico have that same idea, and they are now engaged in a sophisticated legal assault on Puerto Rico's bar association, called the Colegio de Abogados de Puerto Rico.

The Colegio has long been outspoken on matters of Free Speech in Puerto Rico. Recently, Puerto Rican police assaulted peaceful student protesters with pepper spray and clubs. Protests are now banned, and the student leaders are arrested. As Colegio members challenge these assaults on the First Amendment, the Puerto Rican legislature closed its proceedings from the public.

The latest legal assault on the Colegio claims to be about life insurance. From 1932 to 2006, Puerto Rican law required the Colegio to provide insurance to its members. Notwithstanding the law, a group of adversaries of the Colegio brought a class action lawsuit against the life insurance program. This lawsuit is assigned to Judge José A. Fusté, a federal judge with close political ties to the ruling party and a personal history of opposing the Puerto Rico bar association. After finding that the life insurance program was illegal, he converted the lawsuit to a class action for damages, and forbade the Colegio from telling its members how they could opt out. The First Circuit reversed that order, but Judge Fusté has nevertheless held the Colegio's president, Osvaldo Toledo, in contempt and sent him to jail. Toledo's offense is that he communicated with the Colegio's members about how they could opt out of the lawsuit. U.S. Representative Luis Gutierrez made a speech on the House floor last month that details the shocking suppression of Free Speech in Puerto Rico. Follow this link to read for yourself the opt-out instructions that landed Toledo in jail.

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On November 19, 2010, the National Whistleblowers Center (NWC) hosted a visit by Middle Eastern officials as part of the State Department's Transparency in Government project for the Near East. The program offered a view of the role of citizens, media and private non-profit advocacy in fostering transparency and accountability in government. Visitors learned about the uneven patchwork of whistleblower protections here in the United States, and our perspective about which laws work best and why.

Pictured here (not in order) are Dr. Amr Hashem Ahmed Abdel-Megid-Rabee of Egypt's Center for Political and Strategic Studies (Al Ahram Foundation), Mr. Khaled A.A.M. Malek of the Administration of Kuwait Customs - Privatization Project, Mr. Sidi Mohamed Boyde, Mauritania's Deputy Inspector General, Ms. Mariam Ait Alla of Morocco's Central Authority for the Prevention of Corruption (ICPC), Mr. Nassar Fakih Lanjri, Vice President of Morocco's Urban Commune of Tetouan, Mr. Mustapha Labbassi, Tetouan Bureau Chief of Al Ahdath Al Maghrebiya, Mr. Daoud S.M. Darawi, Judge of the Palestinian Authority's Supreme Judicial Council, Mr. Mugren Ibrahim M. Binmugren, Judge of Saudi Arabia's Administrative Court in Riyadh, and Mr. Marwan Ahmed Qasem Dammag, Secretary General of Yemen's Press Syndicate. With them are Mr. Stephen M. Kohn, Executive Director of NWC, Ms. Estelle Kohn, Deputy Director of NWC, and NWC interns Saki, Juliana, Leigh, Nobuya, Breann and Liz.

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In 2001, Eugene McErlean was working for the giant Allied Irish Banks (AIB) as an internal auditor. He discovered that his employer had been overcharging customers for exchanges from foreign currencies.  In over 3 million transactions, AIB had run up overcharges now valued at over €34 million ($47 million). McErlean reported his findings and his superiors seemed to share his concern, but nothing happened.  Then he went to Irish regulators with a report about his concern. The regulators did nothing, but in 2002 his boss insisted that he retract all his allegations. He refused and soon found himself looking for a new job.  In 2004, the overcharges became a national scandal. Now AIB has set aside €50 million ($69 million) to cover the cost of refunds.

Last year, outgoing AIB boss Eugene Sheehy apologized to McErlean. According to the Irish Independent, Sheehy told a provincial House committee that McErlean, "undertook the role of auditor in a highly professional, competent and effective manner. Eugene was not dismissed by AIB." McErlean was gracious in accepting the apology, and indicated that he was more concerned with the failure of Irish regulators to respond to his 2001 concerns. As the Independent stated last year, "The discredited watchdog would now be better off following Sheehy's example and emerging from the Dame Street bunker waving the white flag."

A year later, that watchdog is now waving that white flag. Today's Independent is reporting that Financial Regulator Matthew Elderfield will testify tomorrow to Ireland's parliament (called the Oireachtas) and convey his agency's apology for its past mistreatment of McErlean and his concerns. Elderfield called McErlean yesterday to convey his apology yesterday.

I can add two postscripts. Wikipedia is still reporting that to this day, AIB has not disciplined anyone for knowingly making the illegal overcharges. The overcharges were made for eight years, and various managers knew about them while there were going on. Also, since this scandal erupted, AIB purchased a large share of M&T Bank of Buffalo, New York.

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The Philippine Daily Inquirer reports that the Philippine Bureau of Customs has filed charges that Oillink, an import company, cheated the government out of 700 million Philippine pesos (16 million US dollars). The Bureau of Customs discovered the fraud through an anonymous letter, apparently from a disgruntled employee. In a column, Raul Palabrica says, "It takes a lot of guts for a person to provide inside information to the authorities that could lead to the imprisonment of the people he once worked with or whose table he may have shared on several occasions." "And once the whistle is blown, there is no assurance that the whistle-blower will not be caught in the maelstrom that his action may have caused," Palabrica adds. He also comments on the predicament of UBS whistleblower Brad Birkenfeld.  Birkenfeld's disclosures, he says,

resulted in the rest of the safe banking havens based in Lichtenstein, Cayman Islands and other exotic places into doing something similar under pain of being accused of money laundering and blacklisted in the international banking community.

So you think the whistle-blower was declared a hero for initiating the action that practically turned upside down tax haven banks?

No! Instead, he was tried and found guilty of abetting tax evasion and sentenced to 40 months in jail.

That is suffering for speaking truth to power.

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Last April, I submitted a report to the United Nations High Commissioner for Human Rights and the U.S. State Department about how U.S. law fails to give whistleblowers customary remedies for their retaliation claims. My report listed the international treaties that required the United States to protect whistleblowers. It listed specific cases in which whistleblowers' rights had been denied, including one case, Bradley Birkenfeld, in which the whistleblower was currently imprisoned. It also decried the pitiful state of the law when it comes to protecting federal employees who blow the whistle on waste, fraud and abuse. I called on the State Department to answer to the United Nations for this failure to give whistleblowers the same rights that victims of auto accidents have.

Last month, the State Department issued its report to the United Nations under its Universal Periodic Review (UPR). That report makes no mention of whistleblower rights.  It does not even include the word, "transparency." I called on the State Department to answer how the limits on political asylum (such as requiring applications to be filed in English within one year of entry to the US) comported with the duty to provide asylum to international whistleblowers seeking refuge here.  No mention of that either. The UPR process provides for direct questioning of U.S. representatives in November. Perhaps those representatives will face questions about how whistleblowers here get less rights that other victims of wrongful conduct, and why the U.S. has not passed laws to assure whistleblowers our customary rights and remedies.

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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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