TESTIMONY OF TOM DEVINE
LEGAL DIRECTOR, GOVERNMENT ACCOUNTABILITY PROJECT
WORKING GROUP ON PROBITY AND PUBLIC ETHICS
ORGANIZATION OF AMERICAN STATES
March 31, 2000
Thank you for inviting testimony by the Government Accountability Project (GAP) before the Working Group on Probity and Public Ethics of the Organization of American States (OAS). My name is Tom Devine, and I serve as legal director for GAP, a nonpartisan, nonprofit public interest organization that supports the rights of "whistleblowers."
Many languages do not include two terms from my introduction. In order to avoid confusion, definitions may be helpful. For purposes of this testimony, "accountability" means holding the members of civil society responsible for honoring the relevant institutional rules and responsibilities.
"Whistleblowers" are individuals who exercise free speech rights to challenge illegality or other betrayals of public trust about which they learn on the job. They are defined in U.S. law as employees who make disclosures evidencing a reasonable belief of illegality, gross waste, gross mismanagement, abuse of authority, or a substantial and specific danger to public health or safety. Some countries, such as the Netherlands, call whistleblowers "bell ringers," after those who ring church bells when danger threatens a community. In some nations, they are known as "lighthouse keepers," whose beacon exposes rocks and danger spots that could sink ships. The common theme is that they exercise freedom of speech to warn the public about threats to civil society.
Since 1977 GAP has been a nonprofit, nonpartisan public interest organization that defends the rights of these witnesses who defend the public. We pursue our mission through counseling and representing individuals who are face retaliation; conducting investigations to help expose coverups, seek accountability, and correct the problems they disclose; leading efforts to create and strengthen whistleblower laws; and publishing works ranging from books to scholarly articles such as law reviews.
We have led the successful campaigns to pass that convinced Congress to unanimously pass the Whistleblower Protection Act of 1989 for civilian federal government workers; the Military Whistleblower Protection Act for armed services members; and similar laws protecting corporate employees in the nuclear, airlines and other industries. We have served as expert to help state and local governments pass similar laws protecting employees at that level. Our publications include "The Whistleblower Protection Act of 1989: Foundation for the Modern Law of Dissent," 51 Administrative Law Review 531 (Spring 1999) for the American Bar Association; and The Whistleblowers Survival Guide: Courage Without Martyrdom, which is available through GAPs website, http://www.whistleblower.org. We are honored to make our expertise available to the Working Group.
THE VALUE OF WHISTLEBLOWERS IN FIGHTING CORRUPTION
Whistleblowers share the Working Groups vision, because you are trying to change the course of history. At GAP we call whistleblowers the living histories who refuse to be rewritten. They act as the early warning system necessary to purge the cancer of corruption before it spreads. In this role, they have changed the course of history through United States laws protecting their exercise of free speech rights.
To illustrate, their disclosures have
- stopped nuclear power plants from operating that were accidents waiting to happen because of systematic illegality violating nuclear safety laws.
- played a major role in shutting down toxic waste incinerators that illegally were burning arsenic, lead and other toxic metals next to school yards and churches.
- helped stop continued misspending on the anti-ballistic missile defense system known as "Star Wars," by revealing massive fraud that tainted $30 billion of spending for that program.
- proven that when official records showed only 5,000 gallons of radioactive leaks from nuclear waste disposal sites, the accurate data was 440 billion gallons of radioactive pollution.
- exposed and been vindicated in challenges to fraud in government contracts through False Claims Act lawsuits on behalf of taxpayers that have returned some $3 billion to the Treasury.
In short, whistleblowers serve as the human factor that is the Achilles heel of bureaucratic corruption. They have proven time and again that in a free society, nothing is more powerful than the truth. They are an indispensable resource for your efforts.
GAPS INTERNATIONAL EFFORTS
Last year GAP began an international dimension to our advocacy. The roots occurred after a sister organization in Great Britain, Public Concern at Work, requested our testimony in 1998 for an analogous law passed by that nation, the Public Interest Disclosure Act. Subsequently, a Public Concern staff member, Josh Winfield, volunteered for a full time fellowship at our organization. He was joined by Jasmin Keshet, former legal director of another sister organization, who was in an American University fellowship program and sponsored by the New Israel Fund. Through their efforts we launched an international campaign directed by Ms. Keshet to include whistleblower rights as one of the essential checks and balances for accountability in globalization.
GAPs international work has four cornerstones. First, we provide expert technical assistance to government and private sector leaders, reviewing proposals, as well as sharing model legislation and helping adopt it to the legal systems of their nations. In the government sector, the context is generally proposed legislation. In the private sector, the setting often is credible internal programs such as hotlines and ombudspersons, and Alternative Disputes Resolution programs from mediation to arbitration to resolve disputes on retaliation or alleged misconduct raised by whistleblowers. For evaluation purposes we have developed a Checklist for Effective Whistleblower Protection Laws, enclosed as Attachment 1. A generic model law as the basis to develop national legislation is enclosed as Attachment 2. Finally, a model law for private lawsuits challenging corruption or other illegality, the Citizens Enforcement Act, is enclosed as Attachment 3.
This service is particularly relevant to implement Article III, Section 8 of the Inter-American Convention Against Corruption. That provision requires
For the purposes set forth in Article II of this Convention, the States Parties
Agree to consider the applicability of:
MODEL CITIZEN ENFORCEMENT ACT
WHEREAS: Citizens have been frustrated that they are not empowered with meaningful control of their lives due to dependence on expensive, cumbersome government regulatory agencies; and
WHEREAS: The public interest requires that it be illegal to discriminate against government or private employees who make disclosures responsibly challenging violations of law; because they are invaluable to law enforcement, to the publics right to know, and to prevent or minimize the consequences from institutional misconduct.
THEREFORE BE IT RESOLVED:
SECTION 1: JURISDICTION AND PROCEDURE: Any citizen may challenge violations of law through a jury trial under the procedures available in the False Claims Act (31 U.S.C. sec. 3729 et seq.), unless the parties mutually consent to alternative disputes resolution procedures such as mediation or arbitration.
SECTION 2: RELIEF: A jury may award injunctive relief to stop ongoing illegality, as well as actual or exemplary damages, as it deems appropriate.
SECTION 3: EMPLOYEE PROTECTION:
(A) IN GENERAL No employee or other person may be harassed, prosecuted, held liable or discriminated in any way because that person has: made or is about to make disclosures not prohibited by law or executive order; commenced, caused to be commenced or is about to commence a proceeding; testified or is about to testify at a proceeding; assisted or participated or is about to assist or participated in any manner in such a proceeding or in any other action to carry out the purposes, functions or responsibilities of this Act; or (2) is refusing to violate or assist in the violation of this Act.
(B) PROCEDURES Cases of alleged discrimination shall be governed by the procedures of the False Claims Act (31 U.S.C. sec. 3730(h)), unless the parties mutually consent to alternative disputes resolution procedures such as mediation or arbitration.
(C) BURDENS OF PROOF The legal burdens of proof with respect to prohibited discrimination under subsection (A) shall be governed by the applicable provisions of the Whistleblower Protection Act of 1989 (5 U.S.C. sec. 1214 and sec. 1221).
SECTION FOUR: CONFLICTS: No funds may be spent to implement or enforce any nondisclosure policy, form or agreement without explicit provision that, in the event of a conflict, any restrictions on protected activity are superseded by this Act.
MODEL INTERNATIONAL WHISTLEBLOWER PROTECTION ACT
1. (Protected activity) It shall be illegal to engage in material discrimination through employment-related actions, civil or criminal prosecution or other harassment, against a person, because that person refuses to violate, or makes any disclosure not specifically prohibited by law, evidencing violations or failure to comply with the authoritative provisions of international, national, or institutional law, convention, treaty or covenant, for any covered institution.
2. (Due process) Within one year of learning the occurrence of prohibited discrimination, any person may file suit in an independent judicial forum, with trial by jury where available, and is entitled to the most complete due process available by national law. The person filing suit may choose an Alternative Disputes Resolution forum, including arbitration or mediation, to conduct proceedings on the alleged discrimination.
3. (Burden of proof) If the person demonstrates by a preponderance of evidence that protected activity was a contributing factor in any alleged discrimination, that person will prevail in the suit unless the defendant demonstrates by clear and convincing evidence that it would have taken the same action for independent, lawful reasons.
4. (Relief) If the person alleging discrimination for protected activity prevails, that person is entitled to all relief necessary to be made whole so that protected activity does not result in any direct or indirect prejudice. This includes but is not limited to cancellation of the discriminatory action; payment and any other compensation necessary to neutralize all direct or indirect consequences of discrimination; interim relief during the proceeding or on appeal; transfer or other relocation if requested; and attorney fees and all other necessary costs incurred to prevail in the suit; and discipline or other accountability for those who engaged in prohibited discrimination. If the forum hearing the discrimination case determines the person made protected disclosures, it shall make authoritative referrals for official investigation and corrective action by relevant national or international authorities, free from conflict of interest, on the persons disclosure of alleged violations of law, convention, treaty or covenant.
CHECKLIST FOR EFFECTIVE WHISTLEBLOWER PROTECTION LAWS
Tom Devine, Legal Director
The Government Accountability Project (GAP) is a non-profit, nonpartisan public interest law firm that specializes in protection for genuine whistleblowers, employees who exercise free speech rights to challenge institutional illegality, abuse of power or other betrayals of the public trust they learn of or witness on the job. GAP has led the public campaigns for passage of the Whistleblower Protection Act of 1989 ("WPA")(federal employees); Military Whistleblower Protection Act (armed services members); numerous related statutes for private industry sectors such as nuclear weapons and nuclear power; and numerous state whistleblower laws.
While whistleblower protection laws are increasingly popular, in many cases the rights have been largely symbolic and therefore counterproductive. Employees have risked retaliation thinking they had genuine protection, when in reality there was no realistic chance they could maintain their careers. In those instances, acting on rights contained in whistleblower laws has meant the near-certainty that a legal forum would formally endorse the retaliation, leaving the careers of reprisal victims far more prejudiced than if no whistleblower protection law had been in place at all. Review of the track records for these and prior laws over the last 23 years has revealed numerous lessons learned, which have steadily been solved on the federal level through amendments to correct mistakes and close loopholes.
GAP labels token laws as "cardboard shields," because anyone relying on them is sure to die professionally. We view genuine whistleblower laws as "metal shields," behind which a employees career has a fighting chance to survive. The checklist of 21 requirements below reflects GAPs 23 years of lessons learned on the difference. All the minimum concepts exist in various employee protection statutes currently on the books.
- SCOPE OF COVERAGE
1. "No loopholes" protected speech. Protected whistleblowing should cover "any" disclosure that would be accepted in a legal forum as evidence of significant misconduct or would assist in carrying out legitimate law enforcement functions. There can be no loopholes for form, context or audience, unless release of the information is specifically prohibited by statute. In that circumstance, disclosures should still be protected if made to representatives of institutional leadership, or to designated law enforcement or legislative offices.
2. Realistic scope of subject matter. Whistleblower laws should cover disclosures of any illegality, gross waste, mismanagement, abuse of authority, substantial and specific danger to public health or safety, as well as any other information that assists in implementing or enforcing the law or achieving its purpose.
3. Duty to disclose illegality. This provision helps switch the whistleblowing context from a personal initiative for conflict, to a public service duty to bear witness.
4. Right not to violate the law. This provision is fundamental to stop faits-accompli and in some cases prevent the need for whistleblowing. Significantly, however, an employee who refuses to obey an order on grounds that it is illegal must proceed at his or her own risk, assuming vulnerability to discipline if a court subsequently determines the order would not have required illegality.
5. Protection for the full scope of activity that leads to harassment. The law should cover all common scenarios that could have a chilling effect on responsible exercise of free speech rights. Representative scenarios include employees who are perceived as whistleblowers, even if mistaken (to guard against guilt by association), and employees who are "about to" make a disclosure (to preclude preemptive strikes to circumvent statutory protection). These indirect contexts often can have the most significant potential to lock in secrecy by silencing employees.
6. Coverage for all employees performing public service functions. Coverage should extend to all employees who are challenging betrayals of the public trust, whether the employer is public or private. Public whistleblower statutes should protect all who are paid with taxpayer funds to carry out government functions, including employees of government contractors or corporations.
7. Coverage for confidential disclosures. To maximize the flow of information necessary for accountability, protected channels must be available for those who choose to make anonymous disclosures. As the WPA sponsors recognized, denying this option creates a severe chilling effect.
8. Protection for the full scope of harassment. The forms of harassment are limited only by the imagination. As a result, it is necessary to ban any discrimination taken because of protected activity, whether active such as termination, or passive such as refusal to promote or provide training. The prohibition must cover recommendations as well as the official act of discrimination, to guard against managers who "dont want to know" why subordinates have targeted employees for an action.
9. Anti-gag order provision. Any whistleblower law must include a ban on "gag orders" through an employers rules, policies, or nondisclosure agreements that would otherwise override free speech rights and impose prior restraint.
10. Prominent posting of rights. As a practical matter whistleblowers are not protected by any law, if they do not know it exists. Whistleblower rights, along with the duty to disclose illegality, must be posted prominently in any workplace.
The setting to adjudicate a whistleblowers rights must be free from institutionalized conflict of interest. The records of administrative boards and grievances have been so unfavorable that as a rule, laws adjudicated in these settings are Trojan horses. Two settings have a track record of giving whistleblowers a fair day in court.
11. Right to a jury trial. This option institutionalizes normal judicial due process rights, the same available for citizens generally who are aggrieved by illegality or abuse of power. Most significant, it means that whistleblowers will be judged by a jury of peers from the citizens whom they purport to defend.
12. Option for Alternative Disputes Resolution with an arbitrator selected by mutual consent. Arbitration can be an expedited, less costly forum for whistleblowers, if the decision-maker is selected by mutual consent through a "strike" process.
- RULES TO PREVAIL
13. Modern burdens of proof. The federal Whistleblower Protection Act of 1989 overhauled antiquated, unreasonable burdens of proof that had made it hopelessly unrealistic for whistleblowers to prevail when defending their rights.
The current standard, which since 1989 has been adopted consistently in federal laws, is that a whistleblower established a prima facie case of violation by establishing through a preponderance of the evidence that protected conduct was a "contributing factor" in challenged discrimination. The discrimination does not have to involve retaliation, which could require personal hostility, but only need occur "because of" the whistleblowing. Once a prima facie case has been made, the burden of proof shifts to the employer to demonstrate by clear and convincing evidence that it would have taken the same action for independent, legitimate reasons in the absence of protected activity.
Since the federal government switched the burden of proof in whistleblowerf laws, the rate to prevail on the merits has increased from 1-5% annually, which institutionalizes a chilling effect, to 25-33%, which gives whistleblowers a fighting chance to successfully defend themselves.
14. Realistic statute of limitations. Although some laws require employees to act within 30-60 days or waive their rights, most whistleblowers are not even aware of their rights within that time frame. A one year statute of limitations is consistent with common law rights and has proved functional.
- RELIEF FOR WHISTLEBLOWERS WHO WIN
15. Full scope of consequences. If a whistleblower prevails, the relief must be comprehensive to cover all the direct, indirect, and future consequences of the reprisal.
16. Interim relief. Even after winning a hearing or trial, an unemployed whistleblower could go bankrupt waiting for completion of an appeals process that frequently drags out for years. Relief should be awarded during the interim for employees who prevail after their day in court. Awards of back salary would be conditional, to be returned if the initial decision is overturned subsequently.
17. Attorney fees. Attorney fees should be available for all who substantially prevail. Otherwise whistleblowers could not afford to assert their rights, or even to win. The fees should be awarded if the whistleblower obtains the relief sought, whether or not it is directly from the legal order issued in the litigation. Otherwise, employers can and have unilaterally surrendered outside the scope of the forum and avoided fees by declaring that the whistleblowers lawsuit was irrelevant to the result. Employees can be ruined by that type victory, since attorney fees not uncommonly reach five to six figures.
18. Transfer preference. It is unrealistic to expect a whistleblower to go back to work for a boss whom he or she has just defeated in a lawsuit. In order to prevent repetitive reprisals that cancel the laws impact, those who prevail must have a strong transfer preference for any realistic chance at a fresh start after winning.
19. Personal accountability for wrongdoers. To deter repetitive violations, it also is indispensible that those responsible for whistleblower reprisal must be held accountable. Otherwise, managers have nothing to lose by doing the dirty work of harassment. The worst that will happen is that they wont get away with it, and they may well be rewarded informally for trying. The most effective option to prevent retaliation is personally liability for punitive damages by those found responsible for violating whistleblower laws. Another option is to allow whistleblowers to counterclaim for disciplinary action, including termination. The most superficial is to make compliance with the whistleblower law a critical element in every managers performance appraisal, and for decisionmakers in reprisal cases to refer responsible officials for investigation to determine if sanctions are appropriate for violating this element.
20. Laws that are additive, not substitutive. Because of some recent court decisions, legislatures that pass whistleblower laws must specify they are not substitutes that cancel out pre-existing constitutional or common law rights. Otherwise, the new law risks being an inferior substitute and significant retreat.
- MAKING A DIFFERENCE
21. Action against wrongdoing exposed by whistleblowing disclosures. Federal studies repeatedly have confirmed that the primary reason would-be whistleblowers remain silent is not fear of retaliation. It is that they will not make a difference. Otherwise, there is no point to risking harassment. An effective whistleblower law should have provision to channel reasonable disclosures of misconduct for appropriate legislative or executive investigation, whether or not retaliation occurs.