by Tom Devine, Legal Director of the Government Accountability Project, a founding member of WIN
Just before Christmas 2014, the Organization of American States (OAS) set a new standard for whistleblower rights at Intergovernmental Organizations (IGOs). On December 17, 2014, the OAS adopted a new staff policy setting out rights that are unsurpassed either at the IGO or national level. Stung by a U.S. funding cutoff due to a previously weak whistleblower policy, the OAS moved to strengthen its policy to include some of the latest international best practices in matters relating to protection of whistleblowers. Below is a summary of provisions in the new policy, with a comparison to summary principles now accepted as global best practices.
The policy can be found at http://www.oas.org/legal/english/gensec/EXOR1403_APPENDIX_A.doc
The first cornerstone for effective whistleblower rights is that they’re available for whomever needs them to safely disclose evidence of misconduct. The OAS policy is seamless, covering all relevant contexts, without arbitrary loopholes. The policy applies to all those covered by staff rules, plus vendors, contractors or “other individuals who are not staff members” but who disclose relevant evidence. It defends against retaliation for three forms of protected activity: 1) whistleblowing against misconduct; 2) participation in an audit or investigation; and 3) refusal to violate OAS rules or regulations. Misconduct is broadly defined to include any violation of OAS rules, as well as corruption, conflict of interest, misuse of resources, abuse of authority and retaliation. Thus, the scope of protection shields against any harassment that could create a chilling effect on someone who comes across such misconduct.
The policy does not explicitly reference job duties, but it specifies that the first line of reporting should be to a supervisor, the normal audience for workplace problem solving. In addition, the policy permits public freedom of expression, consistent with best practices at other IGO’s – if necessary to avoid a significant public health and safety threat, substantive damage to the OAS General Secretariat or a violation of national or international law. Under those circumstances, the whistleblower may make an external disclosure, if: 1) there is no associated payment or benefit; 2) working in-house could result in retaliation or destruction of evidence, or 3) there has been no action on an internal disclosure for 120 days. The policy has a solid “anti-gag” shield against back door attempts to cancel protected activity, trumping contradictory policies or nondisclosure agreements.
The second cornerstone is that the rules to win are fair, based on reasonable legal burdens of proof. To qualify for protection, the whistleblower must have a genuine and reasonable belief of misconduct. The reasonable belief standard is a balanced and realistic screening or merits test that reflects best practices. The policy defines the standard such that “a disinterested observer with similar qualifications and knowledge could perceive [the report] as credible evidence of Misconduct or Retaliation (or indication that such evidence will be encountered during an investigation)….” If the activity is protected and the whistleblower files a retaliation complaint, the burden of proof immediately reverses to the employer to prove by clear and convincing evidence that it would have taken the same actions for independent reasons.
The third cornerstone is due process. Here, the whistleblower has 180 days to file a retaliation complaint, which is the minimum best practice for statutes of limitation. The whistleblower can choose between two informal-to-formal channels for appeal. One route is to file the complaint through Human Resources, with a subsequent guaranteed right to hearing. The other is to challenge alleged retaliation through the Inspector General, after which the case can be brought to the OAS Administrative Tribunal. If both sides agree, the dispute can be resolved through mediation or arbitration. However, there is no right to binding, truly independent arbitration through consensus selection and shared costs.
Finally, for any whistleblower policy, a meaningful remedy is fundamental. Here, the whistleblower policy essentially collapses back to the OAS appeal system, without special provision for intangible damages. However, it does give Human Resources and the Inspector General authority to seek the Secretary General’s approval of interim relief, while the case proceeds. When agencies effectively take advantage of this option to freeze retaliation, experience has shown that cases generally resolve quickly on fair terms.
No policies on paper have value unless they are enforced. All employees, including managers, will receive training upon hire and regular refresher courses in whistleblower rights, which managers will have to take annually. The OAS policy is serious about an infrastructure for the new rights, which is as much as any policy can create on paper.
The OAS deserves credit for leadership in setting a standard of excellence for member nations, based on the whistleblower rights created for its own staff. The new OAS policy illustrates what can be achieved with good will and close coordination among stakeholders. Led by OAS Secretary for Administration Peter Quilter, a team consisting of OAS General Secretariat lawyers Ruben Farje and Sarah Davidson, along with Washington DC lawyer Richard Douglas (a former Foreign Service officer brought into the effort by the OAS), worked closely with GAP and the State Department to craft a strong new staff rule which the OAS Secretary General swiftly approved.
Now comes the hard part: leadership by the Secretary General for those rights to be reliable in practice and accepted within the OAS environment.