Protecting whistleblowers acting in good faith and in the public interest (Part I)

Last week, we discussed the concept of a servant-leader and the ten key characteristics underlying such leadership. Related to both transformational and servant leadership is what is referred to as authentic leadership. This involves building the leader’s legitimacy based on an ethical foundation and through honest relationships with followers and valuing their input. Generally, authentic leaders are positive people with truthful self-concepts who promote openness. In an article found at https://michaelhyatt.com/the-five-marks-of-authentic-leadership.html, Michael Hyatt identified five traits that authentic leaders possess:

  1. Display of initiative: Authentic leaders do not sit on the sidelines and ask others to do what they are unwilling to do themselves. Rather, they walk the talk and lead by example.
  2. Possession of insight: Leaders need wisdom and discernment for the present, and to be able to look at complex situations, gain clarity, and determine a course of action. The name Steve Jobs readily comes to mind. When he returned as CEO of Apple, Jobs inherited a mess. But he had the necessary insight to reboot the business and dominate the industry.
  3. Exercise of influence: People tend to be drawn to the authentic leader’s vision and values. In this way, the authentic leader is able to gather a following and move people to act.
  4. Creating the desired impact: The hallmark of effective leadership is the impact leaders have on their followers. They make a difference and are instrumental in creating real and lasting change. Consider the work of Martin Luther King Jr. In ten years after taking over Baptist Church in Montgomery Alabama, he rose to become a national icon. King mobilized activists, organized leaders, rallied supporters, and was influential in the passage of civil rights legislation, not to mention changing countless hearts and minds.
  5. Demonstration of proven integrity: Above all, the foundation pillar of authentic leadership is display of highest degree of integrity. Without such integrity, leaders cannot create the desired impact which is likely to remain at best elusive, or at worse an unworthwhile legacy.

Now for today’s topic. We must express our gratitude to Transparency Institute Guyana Inc. for its support for whistleblower protection legislation, following the exposure by Nurse Sheryl Marks of the abuse of power by a Region 5 Councillor in relation to access to prescription painkiller medication at the Fort Wellington Hospital. Fearing that she would be held personally accountable for administering the prescription drug, Pethidine, in unusually large quantities, Ms. Marks filed complaints with her superiors and the Minister of Health.  However, her pleas were not only ignored but were met with retaliation through unilateral transfer to another health facility. Not content with this action, the authorities are now considering instituting disciplinary action against Ms. Marks for a breach of confidentiality of the public service rules.

According to TIGI “.…when those who have abused their power and those who have ignored their responsibility as public officials do so with impunity while those who dare to expose wrongdoings are made to feel the consequence, it is mere lip service to the idea for those in authority to proclaim support for whistleblowers…In a very corrupt society and one in which the will of the people has been side-lined as politicians pursue narrow interests, whistle-blowing is an important avenue through which corruption can be uncovered”.

Whistleblowing in perspective

A whistleblower is a person who, in the public interest, exposes misconduct, alleged wrongdoing, illegal activity or corrupt behaviour occurring in an organization. He/she does so anonymously in situations where there is fear of retaliation against him/her. A whistleblower can bring allegations to light by contacting a third party outside of the organization such as the media, government, law enforcement, or those who are concerned. The Guyana Power and Light fraud uncovered in 2015 was because of an anonymous letter from an employee.

The Enron and WorldCom accounting scandals were also the direct result of whistleblowing. These two scandals as well as others prompted Time magazine to declare 2002 as the “Year of the Whistleblower”, citing Sherron Watkins, a Vice-President of Enron; Cynthia Cooper, WorldCom’s internal auditor; and Coleen Rowley, FBI staff attorney. Rowley blew the whistle on the mishandling of the case of Zacarias Moussaoui who was believed to be one of the masterminds behind the 11 September 2001 terrorist attack in New York. These three persons were subject to harsh treatment from their employers but in the end, they became national heroes. One observation made was that women are more likely to become whistleblowers not for the potential for fame and financial gain, but out of a sense of duty.  Cooper wrote a book in 2008 on the WorldCom fraud entitled “Extraordinary Circumstances: The Journey of a Corporate Whistleblower”.

Whistleblowing is viewed by proponents as a moral and ethical act, indeed a form of civil disobedience, in order to protect the public good and the public interest. It is based on the personal conviction that silence in the midst of alleged wrong-doing is not an option, especially in situations where, for whatever, there is a reluctance or even refusal to impose sanctions against the wrongdoer. It is about putting one’s personal interest aside in favour of the broader interest and speaking out anonymously. On the other hand, whistleblowing is viewed by some persons as less than a honourable act and a breach of confidentiality. However, confidentiality has its limits, especially where public resources are involved, or to protect investors and other stakeholders in the case of the private sector. Four areas come to mind where one needs to be guarded when “blowing the whistle”: national security, foreign policy, commercial secrecy and personal privacy. However, as noted above, Time magazine considered Coleen Rowley’s action as an honorable one, notwithstanding that the subject matter was in relation to the highest threat to U.S. national security and foreign policy.

Need for whistleblower protection legislation

The OECD considers whistleblowing as essential to safeguarding the public interest and promoting a culture of public accountability and integrity. It is an invaluable mechanism for exposing corruption, fraud and mismanagement. Indeed, early disclosure of wrongdoing or the risk of wrongdoing can protect human rights, help to save lives and preserve the rule of law. Many countries are increasingly developing legal frameworks to protect whistleblowers. In India, for example, the related legislation provides a mechanism to investigate alleged corruption and misuse of power by public servants and protects anyone who exposes alleged wrongdoing in government bodies, projects and offices. The wrongdoing might take the form of fraud, corruption or mismanagement. The Act also provides for penalties for making false or frivolous complaints.

Here in the Caribbean, except for Jamaica which has had whistleblower protection legislation in place since 2011, we are somewhat slow in offering legal protection to persons acting in good faith and the public interest. Trinidad and Tobago, Barbados, and Guyana have drafted legislation since 2015 but it is unclear why expeditious action has not been taken to move the process forward.

At the Commission of Inquiry into the Public Service, this columnist had highlighted the need for such legislation as a means of protecting those public servants who speak out about wrongdoings committed by their superiors. In an editorial on the subject, the Stabroek News quoted him as follows: “Whistleblower protection legislation is very important to protect the rights of those people who see wrongdoing…they are faced with a situation where they can’t confront… their superiors and they are hurt or they believe in the public interest and therefore they want to speak to someone”. That someone is invariably a person who has access to the media.

In advocating for whistleblower protection, the OECD considers it important for there to be in place a programme of public education to “de-stigmatise whistleblowing, so that citizens understand how disclosing wrongdoing benefits the public good. When witnesses of corruption are confident about their ability to report it, corrupt individuals cannot hide behind the wall of silence”.

Guyana’s Protected Disclosures (Whistleblower) Bill 2015

Guyana has prepared draft legislation on whistleblower protection since 2015 with the following objectives:

  1. to assist in combating corruption and other wrongdoings both in the public and private sectors by encouraging and facilitating the making by employees of specified disclosures of improper conduct in good faith and in the public interest;
  2. to regulate the receiving, investigating or otherwise dealing with disclosures of improper conduct; and
  3. to protect employees who make specified disclosures from being subjected to occupational detriment.

According to the Explanatory Memorandum to the Bill, the proposed legislation marks another step towards full compliance with the Inter-American Convention Against Corruption that came into effect in 1996 and to which Guyana is a signatory. The convention requires member states to consider creating, maintaining and strengthening the system to protect public servants and private citizens who in good faith report acts of corruption to the relevant authorities.

To be continued

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