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Protecting Whistleblowers since 1977

Wasserstrom Judgment Questions Effectiveness of UN Ethics Office

Shelley Walden, March 21, 2013

On March 15, the United Nations Dispute Tribunal (UNDT) issued a judgment on relief in whistleblower James Wasserstrom’s case. The Tribunal – the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – issued a scathing critique of the UN Ethics Office, which is charged with reviewing retaliation complaints from whistleblowers.

Wasserstrom disclosed a possible kickback scheme involving local politicians and senior UN Interim Administration Mission in Kosovo (UNMIK) officials related to a controversial proposed power plant. After blowing the whistle, his contract was not renewed, his passport was confiscated, his car and his apartment were searched, he was subjected to administrative and criminal investigations, his UN ground pass was taken away, his office was "cordoned off with crime scene tape," and his photograph was placed at the entrances of his former workplace. In 2007, he approached the Ethics Office to request protection from retaliation. The Office, however, failed to protect him.

Judge Meeran found that the Ethics Office "clearly violated the Applicant’s right to a fair and competent consideration of the facts." According to the judgment:

The Tribunal finds it difficult to envisage a worse case of insensitive, highhanded and arbitrary treatment in breach of the fundamental principles of the Universal Declaration of Human Rights, including arts. 1, 3, 6, 7, 8 and 9. The failures of the Ethics Office to recognize such gross violations calls seriously into question its suitability and effectiveness as a body charged with the duty … to assist the Secretary-General in ensuring that all staff members observe and perform their functions consistent with the highest standards of integrity required by the Charter of the United Nations …

Judge Meeran also found "that as an institution charged with the responsibility of uncovering acts of retaliation the effectiveness of the Ethics Office leaves much to be desired." GAP agrees with this assessment. According to a GAP review of the Ethics Office’ s annual Activities Reports (for 2006, 2007, 2008, 2009, 2010 and 2011)approximately 297 protection-against-retaliation-inquiries were received from 2006 to July 31, 2011. During that time period, the Office substantiated retaliation and recommended relief in only one case. And even the one whistleblower who was vindicated claims that he was not completely protected from retaliation.

In this case, Judge Meeran took the UN Ethics Office to task at the same time that he ordered the United Nations to pay Wasserstrom $15,000 for having persistently refused "without good cause, to abide by the Orders of the Tribunal…" It must be noted, however, that the total relief awarded in this case – which totaled $65,000 – is objectively less than comprehensive, given the effects of the retaliation suffered. It appears that in order to qualify for more realistic compensation, Wasserstrom was expected to prove that the end of his assignment was retaliatory. Best practices in whistleblower protection, and the UN whistleblower protection policy (Section 2.2), specifically state that the burden of proof for retaliation does not rest with the Applicant. Rather, the Administration "must prove by clear and convincing evidence that it would have taken the same action absent the protected [whistleblowing] activity…" It should not have been Wasserstrom’s obligation to prove that he suffered retaliation: it should have been the Secretary General’s burden to prove that he didn't.

According to best practices in whistleblower protection laws, if a whistleblower prevails, the relief must be comprehensive to cover all the direct, indirect and future consequences of the reprisal.  But relief for UN whistleblowers is often not comprehensive, in part because the Justices at both Tribunals are hamstrung by statutes that limit the amount of relief permitted and prohibit exemplary and punitive damages.

If the United Nations fails to address this problem, it risks a portion of its U.S. funding. According to the 2012 U.S. Consolidated Appropriations Act, 15 percent of the contribution to any UN agency shall be withheld if it is not taking steps to "implement best practices for the protection of whistleblowers from retaliation, including best practices for legal burdens of proof, access to independent adjudicative bodies, results that eliminate the effects of retaliation and statutes of limitation for reporting retaliation."

 As Wasserstrom told journalist Colum Lynch, the award was enough to purchase "half a dozen first class plane tickets for the secretary general and his senior staff," but didn’t fully compensate him for "five years of legal battles and expenses" and the "degrading treatment" to which he was subjected. According to Wasserstrom, the "message to UN staff who might one day want to come forward and do the right thing: do so at your own risk. You have absolutely no protection. And those who retaliate against you suffer no consequences."

GAP is advocating for changes to the UN whistleblower policy in order to strengthen it. But unfortunately, unless the UN Dispute and Appeals Tribunals statutes are revised, UN whistleblowers who challenge retaliation may be unable to receive comprehensive relief when they successfully challenge retaliation.

Shelley Walden is International Officer for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.