Whistleblowing Isn't Just a Federal Issue

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COMMENTARY | An interview about the first comprehensive study of state whistleblower laws and how states protect—or don’t protect—people who report wrongdoing.

Whistleblowing has a long history in the United States, dating back to the American Revolution. The role is now back at the top of the news with an anonymous presidential whistleblower's complaint sparking the investigation that led to President Trump’s impeachment and the ongoing Senate trial.

Whistleblowers—found in both the public and private sector—are employees who report unlawful or unethical actions they’ve observed in the workplace to government or law enforcement authorities or to the media. Government whistleblowers don’t just come forward in Washington, D.C., but at all levels of government. Yet, very little is known about the differences in state laws and the weaknesses in how some governments treat these potentially critical state employees pointing out the wrongdoing they see.

“Whistleblowers are the single most significant source for detecting and preventing crime, more so than government regulators, law enforcement personnel and program auditors combined,” says Jonathan P. West, professor of political science and the director of the Graduate Public Administration Program at the University of Miami.

In late 2019,  the American Review of Public Administration published the first comprehensive study of state whistleblowing provisions by West and fellow author James S. Bowman, a professor of public administration at the Askew School of Public Administration and Policy at Florida State University.

As whistleblowing has become a matter of national concern, it seemed only appropriate for us to turn to West and Bowman to share their thoughts with Route Fifty readers. They responded to our questions by e-mail and so the two men’s thoughts have been melded into single answers.

Q. What are the most common elements of state laws about whistleblowers?

State laws either promise that there will be no retribution or contain a provision that prohibits revenge against an employee whistleblower. Most stipulate that the state will investigate whistleblower disclosures and that feedback on the investigation will be provided to the employee. Most codes specify that whistleblower involvement in the investigation is expected and require documentation of violations. Most laws speculate that all materials will be confidential until the case is closed.

Q. Are whistleblowers in danger of losing protections if it turns out their report of wrongdoing turns out to be false?

Protection is typically provided for good faith reporting based on reasonable belief of wrongdoing made to the state inspector general, ombudsperson, ethics commission or other administrative or adjudicatory bodies. Even if allegations are not proven, the whistleblower will still be protected as long as the disclosure was made in good faith. However, when allegations are knowingly or recklessly false, those providing the information could be removed from protection and subject to financial penalties.

Q. Is it risky to be a whistleblower, even if the disclosures are made in good faith?

It is. Because protection of whistleblowers is often difficult to enforce. Recent civil service reforms have meant loss of some job rights for public employees. If an employee is in the classified civil service, they have formal due process rights affording some protection. However, increasing numbers of positions are being converted to “at-will,” subject to termination at any time for any reason not contrary to law.

[Statutes notwithstanding], concern about possible retaliation is a real deterrent to disclosure, especially if the allegation concerns wrongdoing by an agency superior. We know of cases where people lost their jobs, although it is very difficult to prove that this was a result of retaliation, as other reasons that are tied to job performance may be offered by the employer to explain the dismissal.

Based on our interviews, some appeals claiming retaliation were decided in favor of the employee, but [even] more were denied in favor of the employer.

Q. What surprised you most about your research findings?

We were very surprised at the variation in the administrative units responsible for overseeing whistleblower protection. In prior research on other subjects, we have found it easy to identify the target department, agency or person who can provide the desired information. However, in this study it was very difficult to pinpoint the unit charged with responsibility to protect whistleblowers.

It could be an inspector general or attorney general office, human resource department, department of labor, legislative management audit department, ethics commission, legislative counsel, ombudsman office, auditor’s office, equal employment opportunity coordinator, governor’s office, department of workforce development, independent dispute resolution agency or human rights office.

In some states there are multiple offices; in other states, there are none. Finding the office charged with enforcement responsibility was a bigger challenge than we anticipated.

Q. What aspect of state whistleblower laws stand out as most in need of reform?

In some states, multiple agencies must be contacted when reporting wrongdoing and often the right hand doesn’t know what the left hand is doing.

Diverse departments and bureaus may provide oversight and that can lead to uncertainty and inconsistency in implementing whistleblower protections.

Central offices frequently refer or delegate complaints to decentralized units or other agencies for resolution, making it hard to track the process. Lack of clarity occurs due to the overlapping responsibilities of state ethics commissions and those enforcing legal whistleblowing provisions. In addition, the processes for handling whistleblower complaints in the executive branch often differ from those originating from the legislative branch and that can be confusing.

Q. Do you have recommendations for state whistleblower laws?

As states review their whistleblowing laws, we encourage them to consider whether whistleblowing is clearly defined, the principal administrative unit enforcing the state is specified and the standard and process for determining whistleblower status is unambiguous.

The laws should consider providing guidelines for reporting wrongdoing, state the guarantees and limits of confidentiality, list the disclosures that are protected, set time limits between the wrongdoing claims and administrative responses, outline appeal channels and provide criteria for determining rewards and penalties.

Katherine Barrett and Richard Greene of Barrett and Greene, Inc. are columnists and senior advisers to Route Fifty.

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