BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
GAP’s blog “Tribunal Ruling Shows That UN Whistleblowers Cannot Be Protected” reviews the logic applied by the United Nations Appeals Tribunal (UNAT) when it rejected an application for relief from retaliation submitted by two UN whistleblowers. The applicants to the Tribunal were Ai Loan Nguyen-Kropp and Florin Postica, two investigators in the Office of Internal Oversight Services (OIOS) at the UN Secretariat, who disclosed that their supervisor, Michael Dudley, then Acting Director, had tampered with evidence in an investigation. Subsequently, both were subjected to an investigation, which was ultimately closed without charging them, and which a subsequent supervisor conceded was unwarranted and a wasteful use of resources.
In part, the UNAT rejected Nguyen-Kropp’s and Postica’s application for protection by arguing that an investigation is not in itself damaging, if the subjects are, in the end, exonerated of misconduct. Only an unjustified finding of culpability is contestable as reprisal at the UN.
GAP – and many others – argue differently. In many cases, the simple fact that a person is under investigation is damaging. Everyone knows this: it is the principle behind malicious gossip.
Now, the UN itself acknowledges the harmful impact that an investigation may have, regardless of its final conclusions regarding guilt or innocence. This impact, however, is acknowledged in the UN recruitment processes, not in its whistleblower protection practices. Today, if you were to apply for a position at the UN Secretariat, you would be compelled to respond to the following question: “Have you ever been the subject of a workplace investigation, disciplinary proceedings, disciplinary sanctions, and/or any similar process by any organization relating to possible misconduct? Please provide details of all such cases (including cases in which allegations were not ultimately established).”
So the UN’s own job application process reveals the damage of an investigation. If either of our two whistleblowers were to apply for positions at the UN, they would have to explain why they were investigated in order to proceed. Clearly, the UN Human Resources Department views the process of investigation, when a job applicant is the subject, as relevant to recruitment.
Nonetheless, in the case of two whistleblowers who claimed that their reputations suffered after being placed under investigation, the UNAT ruled: “Initiating an investigation is merely a step in the investigative process and it is not an administrative decision which the UNDT [United Nations Dispute Tribunal] is competent to review…” para. 34. Nguyen-Kropp & Postica (Respondents/Applicants) v. Secretary-General of the United Nations (Appellant/Respondent)(2015-UNAT-509).
In other words, because the Organization did not substantiate the allegations against them, the decision made to investigate Nguyen-Kropp and Postica does not rise to the level of reprisal, and they are therefore ineligible for relief. In short, an investigation per se does no damage to one’s reputation or career. This argument underlies much of the jurisprudence at the Appeals Tribunal. So long as there is no official and formal action taken against a whistleblower, in the eyes of the UNAT, there is no reprisal.
For those organizations that seek to protect whistleblowers and for the attorneys who defend them from retaliation, the crippling effects of a ruling that makes anything short of an official administrative action non-retaliatory are obvious. Like discrimination, much of reprisal is subtle. It takes place without witnesses and without visible scars. Whistleblowers may be deprived of prior duties, including supervisory responsibilities, excluded from meetings, ostracized from social events, marginalized and ignored. No one writes a memo to this effect, but the impact is ruinous and real. Which is why an institutional culture must reflect a commitment to whistleblowing if protection from retaliation is to be effective.
At the UN, however, while there is much rhetoric there is no such commitment. Quite the opposite. As the jurisprudence now stands, reprisal in any form short of an official act is tolerated, retaliators go undisciplined, and only an act of the General Assembly can change this.