U.S. whistleblowing "laws are a piecemeal crazy quilt that are anti-coherent" - U.S. GAP Tom Devine
An independent U.S. nonprofit public interest organization consulted by some 50 national governments on anti-corruption and whistleblowing issues says that the Canadian governmentís bid to table the country's first and upcoming federal whistleblowing legislation is a unique opportunity to create seamless protections in the public interest for all employees, including federal civil servants.
"Our [U.S. whistleblowing] laws are a piecemeal crazy quilt that are anti-coherent," Tom Devine, legal director for the Government Accountability Project (GAP), headquartered in Washington, D.C., said in a telephone interview with The Hill Times. "They're so dizzying that most whistleblowers will give up even trying to figure out what their rights are."
Mr. Devine said the best whistleblower legislation should provide civil servants full protection to blow the whistle in the public interest and should be extended to anyone at any time and for any wrongdoing. He also said it should cover damages if they suffer retaliation and that the legislation should jumpstart investigations into allegations, as well as reiterate civil servants' Charter rights to free speech. He said the Canadian bill should also draw on the anti-gag statue in the U.S. law, while eliminating the "giant loophole of kangaroo courts" in the U.S., Mr. Devine said.
"Those forums [for whistleblowing cases]," he continued, referring to the courts, "have consistently been compromised by conflict of interest because they're not politically independent."
The GAP has developed a 21-point checklist for effective anticorruption and whistleblowing legislation. Founded in 1977, the GAP receives most of its funding from foundations and private individuals. It also generates income as a law firm representing whistleblowers. The GAP's (free) advice has been sought by many countries, frequently through referral by the U.S. State Department. Members of Parliament from Argentina, Costa Rica and Peru as well as European Union Commission employees have also consulted the GAP. Mr. Devine was one of three attorneys hired by the Organization of American States (OAS) to draft model whistleblower protection law now adopted by the OAS, and the GAP was invited to testify to the British Parliamentary committee on Britain's whistleblower legislation, the Public Interest Disclosure Act (PIDA) before it was passed in 1998.
Still being drafted by Privy Council President Denis Coderre's (Bourassa, Que.) team, in conjunction with the Department of Justice, Mr. Coderre said he wants the Canadian legislation to cover all civil servants including agency and Crown corporation employees. But since Cabinet discussions about the legislation, a 1993 election campaign promise, are ongoing, he said he could not be categorical yet on that or several other critical aspects of the legislation with one exception—it will be introduced in the House before the end of March, 2004.
"I think that what I told you is the core or the vision that Prime Minister Martin wants to put forward," Mr. Coderre said in an interview with The Hill Times. "To have the link that will help the person if they're witnessing something, to be without fear and to make sure that they can blow the whistle, and at the same time not fearing that there will be some problems afterwards. To protect that individual, their privacy and make sure that we are in accordance with other legislation and make sure that we're protecting the system or other individuals who would suffer from that whistleblowing, making sure that we have that kind of balanced approach."
Concerned about the legislation's potential abuse by employees with personal vendettas, Mr. Coderre said he was "very, very inspired" by the "tremendous job" the working group did in its research and report. "But we need to go through the Cabinet process and have some political discussions," Mr. Coderre said, "finalizing the preconsultation, and make sure that we're sending a clear message that it's a balanced approach, protective and inclusive."
Canada is breaking no new ground in the legislation's timing.
PCO and Justice Department drafters working on legislation
"But we need to go through the Cabinet process and have some political discussions": Denis Coderre
Both Britain and the U.S. also introduced their whistleblower protection laws after public outcry at a series of scandals.
"The reality is you set out what society says is the bounds of acceptable behaviour, and thatís what the law does," said Anna Myers, deputy director of Public Concern at Work (PCAW), a small independent British charity based in London.
Ms. Myers said that in jurisdictions like Canada where there is no federal whistleblowing protection, those boundaries have not been set.
"If [people] only hear about whistleblowing that is such a high-risk activity, then the culture of saying this is acceptable isnít going to change very quickly," she added.
Founded in 1993, PCAW provides free confidential legal and practical advice to would-be whistleblowers through a national helpline. PCAW operates on money from trusts and foundations and general corporate sponsorship of its helpline. It also works (for a fee) with organizations in all sectors trying to encourage an open accountable workplace. In 2002-2003, 2288 employees called PCAW's helpline, about half concerned whistleblowing issues, 24 of the latter were calls from federal civil servants. PCAW was asked by the British government to consult with all sectors on PIDA and was very closely involved in drafting it. Considered by many as one of the strongest national whistleblowing protection laws in the world, Great Britainís PIDA, a private memberís bill, was passed in 1998, and applies to all employees in Britain, including civil servants.
A tiered disclosure regime, the PIDA protections increase the closer employees get to the heart of the problem in trying to disclose it properly, Ms. Myers said. By placing no limits on reasonable disclosure routes for employees, self-regulation is promoted. The PIDA states whistleblowers
raising genuine concerns must not be victimized, and has no qualifying period for employees to be covered, she explained. Retaliation is automatically unfair with no-cap compensation based on financial losses, victimization or dismissal. The burden of proof is on the employer. The number of claims under the legislation is not a sign of success, Ms. Myers added, since it means that whistleblowers still face retaliation because of organizational culture. Ms. Myers noted that the government has done little to promote either the legislation, or PCAW's existence in the British civil service.
Comparing the US whistleblowing legal patchwork to the PIDA, the GAP's Mr. Devine said the British law is ìsystematically undercut by Britain's Official Secrets Act which allows the government to prevent any exercise of free speech. The PIDA does not challenge that, whereas in the U.S., the
amended Whistleblower Protection Act includes an anti-gag statue. It covers all federal employees except those who work for the CIA and the FBI.
"The second weakness of the British act is the law enforcement loophole," Mr. Devine said. "Abuse of power is more likely [in law enforcement agencies] than any other sector of government."
Mr. Devine, however, pointed to a piece of U.S. legislation, the False Claims Act, as the single most effective law in history for individual whistleblowers. Originally passed at U.S. President Abraham Lincoln's insistence in 1863 to reign in corrupt military equipment suppliers during
the Civil War, in 1986 it was modernized. It now deputizes any one with independent evidence of financial fraud involving a government contractor, private sector employees, employees of government contractors or civil servants learning of wrongdoing independent of their job duties, to file a lawsuit. Whistleblowers filing these suits receive between 10 to 25 per cent of the monies recovered by the U.S. Justice Department. Under the law, Justice recovers three times the amount of the fraud from the corrupt contractor.
"Government employees are not eligible to file such a lawsuit," Mr. Devine explained. "If it involves their area of public service duty because that could create a conflict of interest, instead of enforcing the law, they would keep the evidence for themselves and try to cash in by filing a lawsuit."
In 1985, a good year, the U.S. Justice Department recovered U.S. $27-million under the law. Previously, seven to nine million per annum would be recovered, Mr. Devine said. After its modernization deputized whistleblowers, in the 10 years following 1985, the amount recovered leapt to U.S. $300 per annum, and for the last three years, the total has soared to over U.S. $1-billion per annum returned to the public coffers. Mr. Devine and Mr. Clarke did not hesitate in urging other jurisdictions to adopt similar legislation.
"The key element is to ensure that information can flow to the people who ought to do something about it and that there is an alternative to that if theyíre not going to do it," PCAW's Ms. Myers said. She believes the other critical piece concerns the human dilemma involved in whistleblowing situations. "What we don't want is to have to rely on a few martyrs to risk everything," she said. "As a society, that is not in anyone's interest because all that does is to reinforce the silent majority, that it might be just better to keep your heads down. So we tell organizations, 'you need to be talking to your silent majority and changing your culture.'"
Published in The Hill Times, Monday, March 1, 2004, p. 14-15