Ethical Justice

Chapter Fifteen: Whistleblowers

Whistleblowers

Whistleblower is a generic term used to describe someone that reports misconduct within their own agency or institution; or, as described in Miethe (1999; p.11): “an employee or former employee who reports misconduct to persons who have power to take action”.

This includes reporting breaches of administrative policy, professional ethics, professional responsibilities, and also violations of the law.

The Professional Obligation to Report

Many CJ professions have an explicit obligation to report any misconduct they have direct knowledge of. These obligations may be a function of professional ethics, agency policy, or the law.

In some CJ professions, failure to report may be considered a form of professional misconduct or dereliction of duty.

For an ethical CJ practitioner, the obligation to report misconduct exists whether there is a specific mandate or not. However, the personal, financial and professional repercussions for reporting misconduct are not generally favorable to the reporter.

Employment Contracts

The majority of CJ practitioners sign employment contracts. These contracts likely contain confidentiality agreements, and non-disclosure clauses, that preclude communication of any kind about active casework, internal matters, or employee activities. Restrictions may also be places on the dissemination of information that reflects negatively on the employer.

Employment Contracts

The Unites State Supreme Court holds that (Garcetti, et al. v. Ceballos, 2006):

“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Therefore, government employees who are in a position to have direct knowledge of, and an applied understanding, of misconduct do not always have freedom of speech. They are contractually bound to report such violations strictly within their chain of command and are also contractually bound to refrain from speech that harms the image or effectiveness of their agency.

Whistleblower Protections

OSHA - United States Department of Labor’s Department of Occupational and Safety and Health Administration

OSHA maintains a Whistleblower Protection Program that enforces provisions of more than twenty whistleblower statutes protecting employees who report violations.

Rights afforded by these acts include: worker participating in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Whistleblower Protections

Government Funded Research All institutions receiving research funds from Public Health

Service agencies must have on file an assurance form with the Office of Research Integrity ensuring that the institution has in place policies and procedures for dealing with allegations of misconduct.

Paul Coverdell Forensic Science Improvement Grant Program

Forensic examiners working for crime labs or law enforcement agencies that receive Federal funding are meant to enjoy immunity from employer retaliation when acting as a whistleblower.

Whistleblower Protections

Varied Coverage The protections offered at the state and federal levels vary on

the precise definition of whistleblower. Each state defines whistleblower differently and affords them different conditions of protection.

Whistleblower Protection Enhancement Act of 2012 Signed into law in 2012, this legislation is intended to reform

protections for federal employees seeking to report misconduct, fraud and illegality.

Whistleblower Protection isTheoretical

Whistleblower protection is theoretical because agencies and institutions don’t always understand, abide, or enforce required whistleblower protections.

Loyalty is a quality that is highly regarded by many criminal justice employment cultures.

The law enforcement culture in particular is defined by the requirements of utter loyalty to not only an agency, but to fellow officers – referred to as “the code of silence”.

Repercussions of blowing the whistle include social ostracism by coworkers as well as retaliation from management in the form of blacklisting, demotion, and sometimes dismissal.

Whistleblower Protection isTheoretical

Whistleblower Retaliation According to Dehaven-Smith (2011), retaliation against

whistleblowers tends to have the following characteristics: It often originates at the very highest levels of

government; Officials are often willing to commit felonies in an effort

to retaliate against whistleblowers; Retaliation is sometimes designed to place people’s

lives at risk; Retaliation is usually devastating for the victims; and When retaliation has been exposed, the laws protecting

whistleblowers are not strengthened, nor are the retaliators usually punished.

Suggested Reforms

Reforms must take place in criminal justice leadership and culture.

This means the hiring and retention of ethical employees, and the sanction or expulsion of anyone contrary.

Laws would not have the desired effect because they are incapable of changing fundamental professional character.

Hard Earned Advice

The authors’ provide the following advice when dealing with whistle blowing challenges:

§ Read your employment contract§ Read your agency/institutional policies and procedures§ Read your state laws§ Read your federal laws§ Find a trusted mentor and seek advice§ Document everything related to your concerns in order

to back up your complaint§ Put your complaint in writing

Hard Earned Advice

8. CC the Complaint to multiple supervisors to create transparency and accountability

9. Involve unions when necessary10. Determine who has oversight11. Take it up a level12. Hire a lawyer before taking legal action 13. Consider contacting a local politician 14. Consider contacting the media as a last resort15. Consider civil litigation