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Protecting Whistleblowers since 1977

Reply to the Inter-American Development Bank’s Response to GAP’s Assessment of its Whistleblower Policy

GAP, January 07, 2013

The Inter-American Development Bank (IDB) has released a response to GAP’s recent review of its whistleblower policy. We appreciate the time devoted by IDB officials to evaluating GAP’s analysis. We found some of its feedback to be useful and have, accordingly, released an updated version of our review. However, there were numerous deficiencies in the IDB’s response that we must address.

At the outset, we should mention that this ex post facto debate would have been unnecessary had IDB management invited comments before its policy was passed. The Asian Development Bank, the African Development Bank, and the World Bank sought public feedback on their proposed whistleblower protection policies before adopting them, a step that the IDB failed to take. Much of this debate could have been avoided had public consultation occurred.

GAP’s Response:

  • Page 1: On this page, the IDB states that GAP’s assessment “seems to imply that the IDB’s administration is set on interpreting its rules and regulations in a way that is detrimental to whistleblowers. On the contrary, the IDB has a strong track record of protecting employees who expose wrongdoings.” While GAP cannot draw conclusions on how the IDB administration will act in the future, we do have information about how it has acted in the past. According to a recent report by the U.S. Department of the Treasury, from 2009-2011 the IDB’s Ethics Office received four requests for protection from retaliation and concluded that no retaliation existed in three of these cases. Of these cases, the Bank was obliged to resolve one to the constructive satisfaction of the complainant outside the judicial process. The second case is still pending at the IDB’s Administrative Tribunal, which is a problem in itself. The whistleblower reported retaliation in April 2010, and will not have a Tribunal hearing until 2013, if then. In the meantime, her career and her reputation have been severely damaged. In the third case, the whistleblower won very substantial compensation before the Tribunal but was not reinstated, although career-wrecking retaliation was established. One judge noted that “management did nothing to protect the whistleblower” in this case. There is also a retaliation case before the Tribunal that the report fails to mention. This record, while sparse, indicates that meritorious claims are not fairly evaluated by the Ethics Office.
  • Page 2: The IDB “…disagrees with any assertion that the Whistleblower Policy falls short of standards essential to receiving the full support of its member countries, including the U.S.” As detailed in GAP’s review, the policy does not fully meet any of the standards for a whistleblower protection policy detailed in the U.S. 2012 Consolidated Appropriations Act. It also fails to meet certain standards established in the 2006 Foreign Operations, Export Financing and Related Programs Appropriations Act.
  • Page 2: The IDB claims that “the GAP assessment is incorrect in stating that the IDB Whistleblower Policy was amended for the purpose of complying with standards set forth in U.S. legislation…” While GAP believes that U.S. legislation played a role in the IDB’s decision to update its policy, we have revised the language in our blog entry to reflect the IDB’s concerns, as we must assume that the IDB has accurately reflected its motivations and did not seek to comply with U.S. law.
  • Page 2: The IDB states that it has “an independent adjudicative body for claims of retaliation” and that “GAP’s assessment incorrectly asserts that IDB employees do not have access to independent authorities to address their claims.” As described in GAP’s initial analysis, U.S. law 22 U.S.C. 262o4(11) defines independent adjudicative bodies as “including external arbitration based on consensus selection and shared costs” in whistleblower cases. The IDB does not currently have external arbitration and thus does not meet this standard. Although the IDB refers to an informal and formal mediation system that “will be implemented on April 1, 2013,” GAP is unaware of the specifics of that system and the policy establishing it has not yet been released for public consultation. GAP stands by our original assessment of the IDB’s Administrative Tribunal and Ethics Office.
  • Page 3: The IDB states that its “whistleblower policy includes significant provisions to protect whistleblowers from retaliation and to provide for compensation.” But, as pointed out in GAP’s original analysis, the policy does not require that the effects of retaliation be eliminated. The policy only includes Ethics Office recommendations for necessary relief, not the right to be made whole. 
  • Page 4: The IDB states that “as retaliation could occur in various forms, decisions regarding interim relief may be taken by different authorities depending on the nature of the action being challenged.” While GAP appreciates this clarification, the policy itself does not describe how an interim relief decision will be made. Global Compliance, the firm that the IDB hired to review its ethics system, recommended that a statement be added that clarifies “who in the Bank would be responsible for granting interim relief, under what circumstances, and the types of relief that may be granted.” For reasons unknown, the revised policy does not incorporate this recommendation. It is a serious shortcoming.
  • Page 4: The IDB mentions that “the Whistleblower Policy has been revised to provide for reporting to whistleblowers upon request.” GAP highlighted this as an improvement in our review, but also said that the policy would be stronger if it required the relevant Offices to provide whistleblower updates within 30 days. As it stands, the policy suggests that officials responsible for whistleblower protection “endeavor” to do so. GAP identified the ways in which this provision did not meet Global Compliance’s recommendations. The IDB’s response does not address these concerns.
  • Page 4: The IDB claims that its whistleblower policy “includes a new provision for burden of proof that is more favorable to whistleblowers … GAP’s assertion that the policy includes loopholes to invalidate these provisions is unfounded and demonstrates a misunderstanding of IDB policy.” The previous IDB policy failed to establish the burden of proof that the whistleblower had to meet in order to prove retaliation, so the fact that a burden of proof is included in the new policy is indeed an advance, as GAP acknowledged on page two of our initial review. However, we stand by our assessment that there are loopholes in the new policy that could undermine the more modern burden of proof standard. Over the past 35 years, GAP has seen organizations repeatedly exploit such loopholes in whistleblower policies at the expense of the whistleblower. While we hope that this will not be the case at the IDB, only time (and test cases) will tell. Each test case, however, represents a staff member’s career, and if committed to whistleblower protection, the IDB would have removed the loopholes mentioned in GAP’s review.
  • Page 4: The IDB states that its three day deadline for reporting misconduct does not “preclude a whistleblower from reporting wrongdoing at any time, nor do they prevent the IDB from taking actions to protect whistleblowers or to sanction parties that have committed any wrongdoing.” However, given the uninspired record of the IDB on protecting whistleblowers, the Bank must be obliged by its policy to protect whistleblowers who make a report beyond this unrealistic deadline and not simply permitted to. GAP also notes that this three day deadline is disingenuously buried in the Code of Ethics and Professional Conduct and not mentioned in the whistleblower policy itself. Therefore a potential whistleblower, trying to ascertain whether a disclosure is protected, will not realize that it may be unprotected because of a deadline that does not appear in the policy itself. Nor is the deadline consistent with the best practices in place at other Intergovernmental Organizations. The United Nations, for example, protects whistleblowers who make disclosures up to six years after the individual becomes aware of the misconduct.
  • Page 4: The IDB states that its policy allows “for appropriate disclosures to outside authorities.” Its subsequent statement does not address GAP’s concern that the policy lacks comprehensive protection for lawful public disclosures, as described in depth in our initial analysis. When coupled with the lack of meaningful access to external and impartial adjudicative bodies for a whistleblower making a serious disclosure and suffering retaliation, this policy effectively blocks outside scrutiny of potential corruption. 
  • Page 4: The IDB claims that the “professionals charged with receiving allegations are well-positioned within the institution to ensure that allegations are managed in accordance with IDB policies, that principles such as confidentiality and the rights of whistleblowers are upheld, that due process for parties alleged to have committed wrongdoing are preserved and that actions necessary to address concerns of retaliation may be taken.” While GAP hopes that this will be the case in the future, we note that in the past, the IDB has experienced numerous scandals involving not only the Office of Institutional Integrity, but the Director of the Office. The management and staffing of the Ethics Office is no better. In a period of two years, three different Ethics Officers have come and gone. The first one resigned abruptly after she herself was implicated in a retaliation case. The other two served as “acting” Ethics Officers, a position that left them vulnerable to retaliation from management if their decisions were unfavorable to the Bank. The effects of this vulnerability were visible in the cases they wrongly dismissed as lacking in merit. The Bank’s telephone directory did not identify the Ethics Officer, and those answering the phone for the Bank did not know who the Ethics Officer was. GAP’s lawyers representing IDB whistleblowers were never informed when the Ethics Officer changed, and for lengthy periods could not determine who the official interlocutor was at the IDB in these cases. Finally, one staff member in the “Ethics” Office was transferred there from the “Integrity" Office after the Administrative Tribunal excoriated his investigative practices in ruling number 70.
  • Page 5: The IDB states that the confidentiality provisions in its whistleblower policy do not “represent a broad dissemination of a whistleblower’s identity or a violation of individual rights of employees, as suggested by GAP.” Contrary to the IDB’s claims, our analysis did not state that the confidentiality provisions represent a broad dissemination of a whistleblower’s identity. Rather, we pointed out that the confidentiality provisions in the Bank’s policy do not meet best practice standards: the whistleblower's identity or identifying information should not be disclosed without his or her express written permission, unless there is an imminent threat to public health or safety from corruption, in which case there should be reasonable prior written notice afforded to the person who made the disclosures. The new policy does not meet this standard, as it allows the Bank to disclose identifying information without restriction, as well as broad discretion to reveal the whistleblowers’ actual identity without obtaining his or her prior permission. The IDB’s response does not effectively address these concerns.
  • Page 5: The IDB states its new “definition of retaliation in the Whistleblower Policy improves clarity and does not ‘weaken’ the policy as suggested in the GAP assessment.” While some improvements were made to the reprisal definition, including the addition of a provision that clarifies that non-renewal of a fixed term or other temporary contract could be considered retaliation, there is a significant loophole in the retaliation definition that negates a best practice standard, accepted since 1989. GAP therefore stands by our assessment of the retaliation definition, as detailed on page seven of our review. 
  • Page 5: The IDB states that it provides employees with “various resources for reporting and policies for recusal in the event of conflict of interest.” However, the organization fails to address the concerns raised on page seven of GAP’s evaluation about the failure to incorporate Global Compliance’s recommendation regarding conflict of interest.
  • Page 6: The IDB claims GAP’s “assertion that parties who are not expressly named in the policy are not eligible for whistleblower protections is unfounded.” GAP’s concern arose from the fact that former employees, applicants for employment, volunteers, interns and unpaid staff were not explicitly listed as covered by the policy. Based on the IDB’s response, we assume that it views the term “employee” and “external party” as encompassing these categories and that it will protect these parties should they come forward. We have revised our review to reflect this. However, the IDB has yet to release its new whistleblower policy publicly (the link announcing it on its website goes to an extranet site that cannot be accessed by the public). It is unlikely that external parties will blow the whistle until the policy is made publicly available.
  • Page 6: The IDB states that the whistleblower policy “expressly affords protections to persons who were mistakenly believed to have acted as whistleblowers (section 2.4.4)” and that “the GAP assessment incorrectly states that this recommendation from Global Compliance had not been accepted.” GAP’s claim was that this provision failed to protect witnesses, not whistleblowers as the IDB implies. However, upon further review of sections 2.6 and 2.4.4, we’ve revised our assessment and concluded that mistaken witnesses are indeed covered. Our revised analysis reflects this change.
  • Page 6: The IDB states that “GAP erroneously claims that the Ombudsperson and Staff Association were removed from the list of IDB offices to which one could report suspected wrongdoing. The Ombudsperson and the Staff Association never were authorities for receiving reports of suspected wrongdoing under IDB policies.” GAP’s analysis was based on section 106 of the previous policy, which stated that, “the Bank has several authorities that serve as resources for employees and external parties for reporting suspected acts of wrongdoing, and for protecting their individual rights with the Bank. Several Bank authorities may also be involved in investigations, or otherwise in reviewing the Bank’s activities…. These authorities include, but are not limited to … the Office of the Ombudsperson… Further, the Staff Association, through the Offices of its President and Vice President, offers additional resources to employees. It is the duty of each of these authorities… to protect the confidentiality of information, including information concerning Whistleblowers…”  While we believe that our initial assessment was reasonable given this language, GAP has revised our statement about the Ombudsperson and the Staff Association to reflect the IDB’s concerns.
  • Page 7: The IDB claims that “in effect, GAP condemns the IDB policies that strive to protect confidentiality while at the same time GAP incorrectly criticized the IDB for not sufficiently honoring confidentiality.” As previously mentioned, GAP was critical of the fact that the confidentiality provisions in the policy do not meet best practice standards, which is that the whistleblower's identity oridentifying information should not be disclosed without his or her express written permission, unless there is an imminent threat to public health or safety from corruption, in which case there should be reasonable prior written notice afforded to the person who made the disclosures. We maintain that our assessment is correct. Separately, we stated that section 5.4 of the policy, which has to do with dissemination of allegations by the whistleblower is subjective, chilling and a broad gag order. We stand by this assessment as well. We note that this section is designed to prevent a situation such as the one that developed in 2010, when a staff member exposed misconduct by the Director of the Office of Institutional Integrity and felt that there was no safe channel for disclosure. It is therefore reasonable to conclude that if the IDB established safe reporting channels and effective protections for witnesses and whistleblowers, the problem of anonymous dissemination of allegations would resolve itself. We also note that the Bank is comparing apples and oranges here: the release of the whistleblower’s identity by a Bank office versus the dissemination of allegations by a whistleblower.

In conclusion, GAP notes that the IDB policy fails to meet the best practice standards, as established by U.S. law and adopted by Transparency International, for a credible whistleblower policy. In addition, the measures needed to verify whistleblower protection or access relevant documents or officials are frequently unavailable or dysfunctional. For the past two years, it has been difficult to determine if the Bank even has an Ethics Officer.

We also note that we have represented many IDB whistleblowers and our assessment is based on practice as well as analysis. It is important for IDB policy makers to understand that whistleblower protection is like witness protection. The shield has to be absolutely effective or it encourages people to come forward and then fails to protect them. The consequences are often ruinous and frequently dangerous.

At the same time, as we have set out here, the policy is only the beginning of the story. Enforcement of the policy is essential, and there the record of the IDB is not inspiring either. Over the past few years, GAP has seen a reluctance to address the lack of enforcement of the previous policy, as high-level officials commissioned a policy review and then ignored several crucial recommendations.