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Protecting Whistleblowers since 1977

The United Nations Response to GAP about Revisions to The UN Whistleblower Protection Policy

Bea Edwards, December 30, 2016

GAP appreciates the United Nations’ response to our observations about its pending revisions to SGB/2005/21, The UN Whistleblower Protection Policy. In brief, we were concerned that UN management is narrowing the definition of a “protected disclosure” in a revised policy, and we strongly believe that the existing definition meets best practice standards: it should not be made more restrictive. Meeting the best-practice standard is important because the disbursement of the full US contribution to the United Nations Secretariat is contingent upon certification by the Secretary of State that the standard is met and implemented.

In the revisions proposed for the whistleblower protection policy, the only disclosures that will earn a whistleblower protection from reprisal are those that:

…[I]f established would be substantially harmful to the interest, operations, or governance of the Organization.

In other words, disclosures about violations of UN regulations and conduct standards will no longer be protected.    

In addition, under the new policy, the Department responsible for deciding whether a disclosure meets the “substantial harm” standard is the Office of Internal Oversight Services (OIOS). This is, in itself, a booby trap, but it is another story.

The rationale for narrowing this definition (see para. 15 below) is that UN staff members are using the Ethics Office as a channel for labor disputes in addition to those channels designed for that purpose.   The UN argues, rightly, that this use of the Ethics Office is duplicative. The UN argues wrongly, though, that “the policy be refocused to encourage more reporting of serious misconduct.”

The fact is, there is plenty of reporting of serious misconduct, but not to the Ethics Office. There is a backstory that explains what has happened, and indicates that the appropriate action is a reform of the Ethics Office and not a more constrained definition of a protected disclosure.

In practice, the Ethics Office has been extraordinarily hostile to whistleblowers, rarely finding that they’ve suffered retaliation (see Wasserstrom UNDT/2013/53, para 27 [PDF]):

The Tribunal found that the conclusion of the Ethics Office that the Applicant was not retaliated against was arrived at as a result of a misdirection in law and a failure to appreciate fully the significance of the documentary evidence before them. In the circumstances, the Ethics Office failed to draw the appropriate inferences that it would have been legitimate to draw from the facts many of which were uncontested.

In less polite terms, the work of the Ethics Office in evaluating the mistreatment to which UN staff member and whistleblower James Wasserstrom was subjected was sloppy and incompetent. This is a charitable construction of the Ethics Office’s work. See for example, Nguyen-Kropp/Postica (PDF) UNDT/2013/053:

…[T]he record would appear to indicate that as an institution charged with the responsibility of uncovering acts of retaliation the effectiveness of the Ethics Office leaves much to be desired.

Further:

The appalling treatment to which the Applicant had been subjected led the Tribunal to state in UNDT/2012/092, at para. 44, that: … This begs the question as to how or for what reason could a staff member with an otherwise impeccable record of service with the Organization have been subjected to wholly unacceptable treatment in breach of his right to due process. There would appear to have been a fundamental failure on the part of the Ethics Office to ask the simple question as to why the Applicant was treated in such a way.

Moreover, through a series of arcane legalistic maneuvers, UN management argued successfully that the determinations of the Ethics Office are not contestable in the UN justice system. So when the Ethics Office determines that retaliation did not take place, that ruling is not contestable at the Tribunal. Period. Thanks to the machinations of the Ethics Office under a series of different directors, UN whistleblowers have a right without a remedy.

As a result, whistleblowers making serious disclosures of wrongdoing come to GAP or to other external law firms. At GAP, we have more public interest disclosures than we can handle from UN whistleblowers (sexual abuse of orphans displaced by war, failure to take action in the face of genocide and/or an epidemic, procurement corruption, etc.), and we would be glad to have help from a fair and objective UN Ethics Office. 

In short, the UN Ethics Office has been marginalized by the whistleblowers making disclosures of substantial harm to the Organization because it does not protect them. As Judge Meeran wrote in Nguyen-Kropp/Postica:

The current state of the jurisprudence establishes the total lack of accountability of the Ethics Office and this, in and of itself, seriously undermines the purpose underpinning ST/SGB/2005/21, which is to expose misconduct at all levels within the Organization and to protect those reporting misconduct in good faith.

Because this has been true over many years and different directors, it’s clearly not an individual failing; it’s a structural problem. The Ethics Office cannot withstand the political pressures to which it is exposed. In short, the fact that the Ethics Office has become a channel for addressing labor disputes and not a means of making a serious disclosure of wrongdoing is not a consequence of a defective policy. It is a consequence of a useless Ethics Office. This is not only GAP’s opinion; it is also the opinion of the UN Dispute Tribunal. So that’s where the reforms should begin. The UN should restructure the Ethics Office to protect its work from political interests and from interference by senior managers trying to conceal their own misconduct. The definition of a protected disclosure is just fine as it stands.