Whistleblowing. It Explains and Analyzes the Term

¶ … Whistleblowing." It explains and analyzes the term "whistleblowing" and takes a look at the various different issues related to it.

Whistleblowing

The term "Whistleblowing" is any revelation of information by an employee or candidate for employment which the employee or candidate rationally believes evidences one of the following:

violation of law, rule, or regulation gross mismanagement gross waste of funds an abuse of authority substantial and specific danger to public health or safety provided that the disclosure of information is not exclusively prohibited by law or the information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs. But this term has been defined in various different ways by different people. According to some whistleblowing "refers to a warning issued by a member or former member of an organization to the public about a serious wrongdoing or danger created or concealed within the organization." Whereas some add to this definition and say that a genuine case of whistleblowing requires the whistleblower to have utilized, unsuccessfully, all appropriate channels within the organization to right a wrong.(Bok, S.: 1980, "Whistleblowing and Professional Responsibility," New York University Education Quarterly, 11, 2-7.) This definition is in keeping with a study on patient advocacy within organizations that distinguished whistleblowing from reporting. According to the study, participants tended to view whistleblowing as an external action to an unresponsive organization and reporting "more as an internal process, done through organizational channels." These days a typical definition of a whistleblower will be akin to that used in the United States' renowned statute the Civil Service Reform Act of 1978. This Act defines a whistleblower as an employee: "who discloses information he reasonably believes evidences a violation of any law, rule, or regulation, or mismanagement, a gross waste of public funds, an abuse of authority, or a substantial or specific danger to public health or safety." A Whistleblower can blow the whistle about crime, civil offences (including negligence, breach of contract etc.), miscarriage of justice, danger to health and safety or the environment and the cover up of any of these. It does not matter whether or not the information is confidential and the whistle blowing can extend to malpractice occurring any country or territory. But the decision of an employee to inform on illegal or unethical practices in the workplace "to blow the whistle" is difficult for several reasons. Ethical justifications for whistleblowing are frequently uncertain. Under what conditions is whistleblowing the right thing to do? When is it in the public interest to do so? Are some instances of whistleblowing more or less valid than others? Employees making such determinations find that conflicting loyalties personal, organizational, and societal can be excruciating. Furthermore, factual determinations of cause and effect as well as personal and corporate responsibility are often difficult and uncertain.(Bok, S.: 1980, "Whistleblowing and Professional Responsibility," New York University Education Quarterly, 11, 2-7.)

Usually whistleblowers lack the resources or the know-how to report effectively on improper business practices. Is "going public" a last resort, to be used only after internal reporting procedures have been exhausted? Is internal whistleblowing preferred to external? Even in instances when these issues are less ambiguous, the whistleblower may nevertheless "think twice" in the face of likely organization retaliation. Public service law firms, consumer groups, institutional reforms, and legislative action have at various times and in different ways undertaken to fight unjust reprisals visited upon the whistleblowers.

After studying "whistleblowing" in detail and analyzing it deeply some feel that blowing the whistle at times is not such a great idea after all. Both Bowie (1982) and Bok (1980) emphasize that an employee has a significant obligation of loyalty to a company. Bok, for instance, writes that the "whistleblower hopes to stop the game; but since he is neither referee nor coach, and since he blows the whistle on his own team, his act is seen as a violation of loyalty." For both, however, the duty of loyalty is not absolute; it is a prima facie duty that can be overridden in certain circumstances. These conditions are worked out by Bowie in some detail:

that the act of whistleblowing stem from appropriate moral motive of preventing unnecessary harm to others;

that the whistleblower use all available internal procedures for rectifying the problematic behavior before public disclosure, although special circumstances may preclude this;

that the whistleblower have 'evidence that would persuade a reasonable person';

that the whistleblower perceive serious danger that can result from the violation;

that the whistleblower act in accordance with his or her responsibilities for 'avoiding and/or exposing moral violations';

that the whistleblower's action have some reasonable chance for success;

Many objected to this approach in which whistleblowing is primarily framed as an act of disloyalty, one that needs rationalization or that can be pursued only under special circumstances. The fault, for them, is found in the notion that individuals should be loyal to a company. A company is not a person and not, therefore, deserving of loyalty. While a company typically consists of people, it is not a group of people with a purpose that transcends self-interest. Loyalty, according to them, exists in the context of human relationships and entails a readiness to engage in sacrificial behavior. What makes whistleblowing so difficult for all persons involved? Chiefly, it is the clash of values inherent in most cases of whistleblowing. This clash of values may take many forms, for example, loyalty to clients or to one's own integrity vs. loyalty to the organization. But what is meant by personal integrity and by loyalty? By personal integrity is meant that one is consistently true to one's moral ideals and value system and is able to demonstrate this consistency in how one lives his/her daily life. By loyalty is meant that one is steadfast in allegiance to others and does not desert or betray others in their time of need. Loyalty also suggests other virtues such as mutual respect, promise keeping, and ability to keep confidences. In addition, one must remember that at times loyalty can be blind or misplaced and, thus, ceases to be a virtue because harm, rather than good, can come from it.(Bowie, N.: 1982, Business Ethics. (Prentice-Hall, Englewood Cliffs, NJ).)

There are many concerns expressed about the activity of whistleblowing. However, it is difficult to avoid the conclusion that much criticism is motivated by a reaction against what is seen to be a somewhat ad hoc approach to the reporting of unacceptable behavior. Whistleblowers are frequently portrayed as well-meaning renegades, out of step with the majority in their concern to report wrongdoing.

One important way to alter such perceptions is to make the activity of reporting wrongdoing an integral part of the systems in place within an organization. Many organizations are familiar with the need to ensure that financial reporting is accurate, comprehensive and regular. New standards of disclosure in prospectuses and as more generally required under rules being established by bodies such as the Australian Securities Commission and the Australian Stock Exchange all help to create a climate of expectation concerning the degree to which the intra and extracurricular stream of information in and about organizations is to be channeled.(Starke, J.G., (1991), "The Protection of Public Service 'Whistleblowers' - Part 2" in The Australian Law Journal, Vol 65, No 5, May 1991, pp 252-265)

Having said this, it is to be recognized that there would seem to be a considerable difference between financial reporting and the kind of reporting envisaged in cases of whistleblowing. After all, it is easy to argue that financial reporting and regimes of continuous disclosure are prudent mechanisms designed to ensure the proper operation of markets. However, it is exactly this type of observation that helps to focus attention on questions to do with the whole basis for establishing a reporting system for whistleblowers to utilize.

Before creating any system it is important to have a clear understanding of the purposes to be served by the network. Whilst it may be fairly easy to specify the objectives for such a system in terms of efficiency and so on, the whole character of the design and execution of the system will be affected by the type of understanding which exists concerning the ends which it is designed to serve. For example, in the case of whistleblowing is the primary aim to report wrongdoing with a view to: prevention, the punishment of malefactors, and the rehabilitation of malefactors, the saving of material resources, the preservation and promotion of a certain type of ethos and so on? Unsurprisingly enough, these options are not mutually exclusive. However, degrees of emphasis may affect the formal structure for a reporting network. For example, if the primary concern is to prevent wrongdoing (as opposed, say, to punish wrongdoers) then there may be a greater emphasis on the need to establish internal lines for reporting. In such a case, whistleblowing would come to be seen as a diagnostic process akin to other more established forms of domestic self-monitoring.(Starke, J.G., (1991), "The Protection of Public Service 'Whistleblowers' - Part 2" in The Australian Law Journal, Vol 65, No 5, May 1991, pp 252-265).

It is extremely imperative to identify that there are a number of extraordinary factors which may be relevant in a way such that an exclusive dependence on internal lines of communication is neither possible nor desirable. Some activities that need to be reported may involve criminal actions. The treatment of matters criminal is a public process. At another level, it may be essential to supplement internal processes with an external framework. There may be extraordinary temptations which lead internal officers to ignore evidence of wrongdoing. For example, issues raised by whistleblowers may be perceived as a relatively unimportant distraction when compared with other more immediate organizational objectives. This may be especially so if the individuals concerned are, in all other respects, good at what they do. Then there are matters that can arise when personal relationships are compromised or when to act on a report would be inconvenient or against ones broader interests.(EARC, (1990), "Protection of Whistleblowers" in Issues Papers No. 10, December, 1990)

All of this leads to some tentative conclusions concerning the general shape of an adequate and effective reporting structure:

the aims of the structure should be made explicit. If the objectives are properly understood and endorsed then there will be a much better chance of achieving the desired end, the structure should resemble other networks within the organization. This will help to persuade a sense that reporting serious wrongdoing is a standard measure of the organization's background, even as it may be advantageous to have internal lines of communication, it is very important that there be an individual or unit whose chief (if not sole) responsibility is to handle the relevant reports. An adequate network must be headed by a person who has sufficient seniority to ensure that reports will be dealt with in an appropriate manner. Whistleblowers must have confidence in the internal system. Such confidence can easily be undermined if there is a perception that the responsible entity is subject to any form of 'operational' conflict of interest. This can happen when cost restraints mean that the responsible entity is required to fulfill a number of other duties which involve a blurring of lines of responsibility and so on, given the difficulty of establishing entirely dependable lines of communication, it may be wise to sanction the use of external lines in situations where there are adequate grounds for believing that the domestic structure is lacking.

Whistleblowing should not be a capricious matter a person's or an organization's life or death may result from it. Thus, strong moral justification must exist for blowing the whistle and, ideally, the whistleblower should have an established reputation for high integrity lest his or her personal characteristics detract from the issues. The following are considered some necessary conditions that should be established before one undertakes blowing the whistle:

The reason the whistleblower is blowing the whistle is because he/she sees a grave injustice or wrongdoing occurring in his/her organization that has not been resolved despite using all appropriate channels within the organization;

The whistleblower morally justifies his/her course of action by appeals to ethical theories, principles, or other components of ethics, as well as relevant facts;

The whistleblower thoroughly investigates the situation and is confident that the facts are as he/she understands them;

The whistleblower understands that his/her primary loyalty is to client(s) unless other compelling moral reasons override this loyalty;

The whistleblower ascertains that blowing the whistle most likely will cause more good than harm to client(s); that is, clients will not be retaliated against because of the whistleblowing; and The whistleblower understands the seriousness of his/her actions and is ready to assume responsibility for them.

EARC, (1990), "Protection of Whistleblowers" in Issues Papers No. 10, December, 1990)

There is an important issue of whether or not there should be a positive duty to report wrongdoing. It may be worth noting that many corporations have now introduced Codes of Business Conduct. The Code of one such company, Coca-Cola Amatil has the following provisions:

Each employee shall be alert to any action or omission in connection with his or her work which might constitute a violation of this Code, shall attempt to prevent Code violations and shall take prompt corrective action necessary to remedy and prevent any recurring violation of this Code.

Where personal corrective action is not possible or practicable, the employee should immediately bring the matter to the attention of his or her supervisor, the functional Executive Director or the Managing Director.