Whistleblowers In Government


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Whistleblowers In Government

  1. 1. Whistleblowers in Government: Administrative Ethics As Seen Through the Constitution, Legislation, and Case Law Susan South December 1, 2008 CRJS 641
  2. 2. Introductory Thoughts Whistleblowing falls under ethical decision-making, where an employee chooses to expose illegal, unethical, or fraudulent practices within the organization, whether from a supervisor or another coworker. These practices range in severity, but often reach a point at which the employee decides to “blow the whistle” on these actions, leaking the information to the police, media, or appropriate authorities. The reasoning behind this decision resides primarily in one’s ethical code, but also evolves out of a person’s prior experiences and rationale, specifically in regards to similar situations. This paper seeks to explore the act of whistleblowing, the motivation behind it, and its effects on government as seen in theoretical concepts of discretion, whistleblowing legislation, as well as an evaluation of administrative ethics principles. Furthermore, through this analysis, each of these components possesses strengths and weaknesses that will be evaluated in order to present recommendations for future legislation and administrative reforms of managing whistleblowing in government. Whistleblowing in Government The whistleblower is some one whose actions are meant to protect others not themselves, looking first towards the framework within the organization to find a means to rectify the situation, and holding the proof any person with reasonable understanding could be convinced (Alford 2001 Whistleblowers: Broken Lives and Organizational Power). Regardless of which sector a person is employed, the potential for unethical, illegal, or deceptive behavior exists at all levels of an organization. As a consequence, employees are often placed in direct conflict with their inner ethical code, forcing them to choose how to reconcile this discord – to disclose or not to disclose those actions. Out of this tension, whistleblowing is a discretionary act, where the administrator must use his or her discretion to determine the best appropriate option to resolve this friction. The key to understand whistleblowing as a decision is inherent in examining its implicit and explicit reasons of discretion, getting to the heart of ethics and determining right actions from wrong ones. South 2
  3. 3. As public servants, government workers are expected to fulfill their duties with the utmost regard for the public good. Typically, public servants are held to a higher code of principles, driven to serve a cause higher than the self. Whistleblowing in government occurs for various reasons, ranging from self perseverance to concern over “doing the right thing.” At the same time, corruption varies at all levels of government and is seen as a “cooperative crime” because it takes two parties to come together cooperatively in the corrupt act, such as nepotism, bribery, or financial distortion (deLeon 2005). In “Cowboys and the New Public Management,” Peter deLeon points to the motivations for those who stand against corruption, as predominantly revolving around money, public opinion, and a duty to societal values. Corruption often elicits a distinct response from government workers who act in accordance to their values and the call to a privileged service, and find themselves those caught in the middle and those negatively affected. Corruption occurs on a spectrum with varying degrees of offenses and unethical activity, much like a whistleblower’s decision when a situation warrants public. All ethics occurs on a continuum, where even whistleblowing has less than altruistic motives at times, stemming from retribution or personal gain. On the opposite end, whistleblowing is crucial to the accountability of government and policy makers, where a public administrator regards the “violation of one’s ethics an even greater impropriety” over any potential consequences that may result (Ventriss and Barney 2003). These consequences include putting the whistleblower’s job, family, and other coworkers’ livelihoods at risk. Despite this risk, the whistleblower believes his or her responsibility is to the greater public good. According to C. Fred Alford, whistleblowers are not considered whistleblowers until some sort of retaliation occurs against him or her, so that the decision to complain or report the corrupt act alone is not whistleblowing. Once the organization or a supervisor who carried out the misconduct retaliates against the person reporting the corruption, then at this point that person becomes a whistleblower (Alford 2001 Whistleblowers: Broken Lives and Organizational Power). In “The Making of a Whistleblower and the Importance of Ethical Autonomy: James F. Alderson.” Curtis Ventriss and Shane M. Barney refer to the case of a financial officer, James Anderson, South 3
  4. 4. at a hospital, who blew the whistle on the worst scandal in the Medicare system. The authors are quick to point out that Alderson did not choose to blow the whistle for fame or fortune, though his courageous actions were ultimately rewarded with both, including several millions of dollars. In fact, Alderson’s choice boils down to his ethical code with the position he was placed in by the management company that took over the hospital’s administration where Alderson worked. He chose to expose the corruption, even suing the private company on behalf of the federal government, at great expense to his career and family life. In 1990, the Quorum Heath Group promised the hospital large financial gains through the federal government’s cost reporting system, and so was hired. Two months after Quorum took over the hospital’s administration, Alderson met with a consultant who assisted in preparing the hospital’s cost reports to the government. During this meeting, a Quorum official entered the meeting, asking the two men if they prepared two cost reports. The men replied that they only prepared one report, not realizing that Quorum intended to submit two reports for the Medicaid reimbursement detailing the largest amount possible and the other, a more conservative amount if the first one was rejected. Alderson and the consultant refused to do two cost reports, and mentioned this practice was fraudulent to the consultant once the administrator left. As a result, Alderson’s refusal to compose two cost reports led to Quorum terminating his employment with the hospital several days later. Despite finding a new job in another small town, Alderson was unable to find a reprieve from his frustrations over the course of events with Quorum, and so he began researching both Quorum and its former parent company, Columbia Healthcare/HCA Healthcare to see if there were other similar fraudulent occurrences between the two companies. From this research, he discovered a tort provision that allowed him, as an individual, to sue another entity on the government’s behalf. Unwittingly, he sent a letter of his intent to file suit against Quorum and Columbia Healthcare to the U.S. Attorney General, Marie O’Connell, who subpoenaed Quorum’s cost reports, and were reviewed by Alderson and a Medicare auditor. They found Alderson’s initial evidence was correct, in that the companies instituted a systematic fraudulent scam extorting the government out of hundreds of millions of dollars. The scope of South 4
  5. 5. this Medicare and Medicaid fraud exceeded both Alderson and O’Connell’s original knowledge, involving more than two hundred hospitals in thirty-seven states. Despite the initial fervent opposition from government investigators and representatives, Alderson continued his suit on behalf of the federal government, believing that Quorum and Columbia Healthcare/HCA Healthcare “needed to pay back the government” because these actions were not only wrong, but also violated the public’s trust. Ten years after his original dismissal from the hospital, Alderson’s professional and personal sacrifices were justified when Quorum settled Alderson’s suit and were forced to repay the government $745 million dollars, followed by another $77.5 million to Alderson. Though not directly a government worker, Alderson recognized the public interests he served in his position as a financial officer in charge of government funded healthcare assistance programs, Medicare and Medicaid, at the hospital. In this way, along with his decision to continue his suit against the healthcare companies on behalf of the government at his own expense, Alderson was a government whistleblower, exposing the worst case of cost reporting fraud in the history of government healthcare assistance programs (Ventriss and Barney 2003). Whistleblowing – A Background More times than not, choosing the right or ethical decision leads to an action that requires a high price, such as losing one’s job and livelihood or the threat of retaliation. In another work by Alford, “Whistleblowers and the Narrative of Ethics,” the author elucidates a comparison between a rescuer and a whistleblower, as a means to better understand what ethical decision-making goes into whistleblowing. Alford compares whistleblowers to rescuers because both characters become a type of liberator and are often mistaken for one another. On the one hand, rescuers risk their lives in order to save others or their surroundings. However, a whistleblower puts his or her livelihood on the line, preserving ethical ideas. The distinction between the two character types is evident in the attachment each forms to what they are saving. A whistleblower cannot be a rescuer because he or she does not form attachments directly to people, but rather to an ideal or code of ethics. Conversely, a rescuer cannot be a whistleblower as they South 5
  6. 6. trust and set out to achieve certain moral expectations from their childhood, forming their decisions based on their attachment to people and their surroundings (Alford 2001). These attachments to people and the environment by the rescuer, as well as the whistleblower’s attachment to ideals are one way to view the motivations behind the rescuer-whistleblower dichotomy. Another way to view this dichotomy is through Kantian ethics, a universal set of moral codes that remains intact even with a world that is spinning wildly out of control. For Kant, “common human reason” was quite capable of distinguishing between right and wrong, morality and immorality because this ability is already built into human mentality (Thorpe 2007). Kant’s human rational supersedes any need to look toward philosophy or science for answers concerning morality, with the intention that moral decisions are innately wired into the human psyche. An inner moral code guides each person, according to a set of universal values. Kantian ethics provides us with the direct ability to establish and subscribe to a moral code within ourselves, transcending any philosophy or dictated command of right and wrong actions. Regardless of where ethics originates, whether innately hardwired or environmentally influenced, a code of ethics resides within each person, guiding the individual in making decisions. In looking at ethics, the idea of the self emerges as it is the individual guiding principle inherent to every person. Understanding these “universal principles” is the governing rationale behind whistleblower protection legislation, along with the Supreme Court’s reasoning behind certain case laws revolving around whistleblowers, which will be discussed later in this paper. Another way to apply Kantian ethics is what Aleksandra Jokic refers to as “supererogatory acts,” including those actions or decisions which go beyond one’s duty and do not guide an individual by a set of universal moral principles. For Jokic, Kant’s common human reason cannot extend to actions such as rescuing or charitable activities, since supererogatory actions have a moral worth that are not inclined to act out of duty. In this way, rescuers’ morality differs from whistleblower morality, which is derived from a set of intrinsic ethical values placed upon their duty within their organization. In situations where a person is faced with rescuing another person or providing a charitable service, this decision is optional, South 6
  7. 7. regardless that performing the actual rescue falls under supererogatory actions without moral obligation (Jokic 2002). On the other hand, whistleblowers, particularly those in government, are held to a certain moral obligation who upholds the public trust, and for this reason specific legislation and court decisions protect those exposing corruption. This distinction between whistleblowers and rescuers or other actions that fall under supererogatory acts illuminates the obligation exists to a set of moral values present within each person. Under supererogatory actions, the whistleblower or rescuer finds themselves compelled, at least initially, to act rather than deliberate over consequences or ethics. A whistleblower’s actions are classified into four narratives on how they make the “choiceless choice,” including what Alford refers to as imagined consequences, an inclination to historical moment, victim identification, and the inability to live a double life. The choiceless choice is the whistleblower’s perception that his or her choice is no longer their choice, but rather already decided for them by an inner code of ethics and the narrative explanation they tell themselves to reconcile this decision. These narratives exceed the whistleblower’s reasoning behind their actions, in that their explanation resides in how they were compelled by the situation where they had no choice, but to blow the whistle. The act of whistleblowing is the end result, or a choice a person makes, which provides a dangerous sense of freedom from a situation that seems impossible otherwise. Actions that are compelled cannot be held accountable to specific reasoning that guides the whistleblower. This freedom puts them at risk and often ruins the whistleblower’s life, including their career, home, and family by their decision to expose corruption (Alford 2001). All narratives share one common element, where the one inner voice instructs the other voice why there is one choice, blowing the whistle. In the first narrative, the imagination foresees the consequences of the unethical or corrupt action, projecting from an “enlarged mentality” of virtue that leaves the whistleblower feeling burdened rather than virtuous. While the rescuer, continuing the rescuer- whistleblower dichotomy, forms an attachment to the other person, the whistleblower’s attachment is more abstract. Through this abstraction, the whistleblower acts against a portion of human nature, breaking perceived alliances within the organization because the attachment to a person or group does not South 7
  8. 8. exist. The rescuer sees his or her role, along with the one they are rescuing, as an alliance, two against the world. Whistleblowers, on the other hand, may risk less in terms of life and limb, but he or she is alone in their action, even though the attachment is to an abstraction versus an actual person (Alford 2001). Whistleblowers, like rescuers find themselves in the situations where they recognize they become the main part of a historical moment. History in this sense is not the type of history that necessarily makes newspapers or textbooks, but rather a sense of history or a role in the course of time in regards to the events at hand. For whistleblowers this awareness of their role as a central point in the course of events attaches them to his or her actions, rather to another person. When a whistleblower exposes the corruption, even in the interest of the public good, he or she is more focused on their own role in the corruption and unethical events that led them to this point, than having an interest in the public they serve. Alford goes on to point out that the whistleblower’s actions become a companion, as they reconcile with themselves the risk to their job, family, and livelihood with their moment to change the course of history. Whistleblowers act alone, forging an alliance with the “self” and his or her ethical principles. They carry their justifications and reasons for their choice as solitary agents to disclose corrupt, unethical actions or policies within their organization (Alford 2001). Alford’s third narrative of the whistleblower, victim identification, occurs when the whistleblower moves beyond the organizational culture they are immersed in to see those who are affected by the unethical or corrupt policies they play a part in. At this point, “moral maturity is reached,” turning criticism towards the self and making the decision between the transgressor and the victim. Alford’s case studies places the whistleblower in a position where he or she is incapable of choosing sides between the aggressor and the victim, reluctant to be aligned with the aggressor, and so choose to act on behalf of the victim. In this way, the reluctance serves as their choice to identify with the action more so than the victim, seeing themselves as victims, not simply an understanding of the victim, but the victim’s fight becomes his or her own fight (Alford 2001). The final narrative that Alford provides is the whistleblower’s inability to “double” or exist in two realities, no longer focusing only on his or her job. In a way, the whistleblower takes the blinders off South 8
  9. 9. to the corruption around them, putting an end to any doubling they participate in, where he or she ignored their ethical concerns while at work. At some point, the voices between the two realities, the whistleblower in the corrupt or unethical situation at work and his or her home life, begin to converse, whereas before these voices were kept separate, known as doubling. In each voice a different moral language is spoken, and other realities exist, indicative of the modern world that separates morality into other forms such as art and religion, as well as organization and bureaucracy. Social organization speaks with one voice of “instrumental reason,” assimilating individuals into an organization or bureaucracy, yet when the organization fails, becoming corrupt, the whistleblower makes a choice to no longer double in his or her realities, and thus becomes a blunder on modern society, detaching from the social organization. With this end to the two realities, where the whistleblowers is alone with his or her ethics, the only choice is to blow the whistle (Alford 2001). Each of these narratives serves as a distinct voice of the whistleblower’s reconciliation with his or her decision to expose the organization’s corruption and unethical practices. Each whistleblower comes to a moment of reckoning and “transcendence,” where the person may have to choose an inner ethical code in order to reconcile the selves, despite a great cost to their career. Through these narratives, a set of Kantian universal moral principles does not fully explain how these whistleblowers find themselves in similar positions to expose corruption, where morality does not necessarily depend upon moral virtues. In fact, morality for whistleblowers is based on “excellences of character” to do what is right, born out of a solemn compulsion or necessity in their actions, working with the imagination’s ability to account for the consequences of corruption on those most affected by it, the public (Alford 2001). In another instance of whistleblowing, which also presents another side of whistleblowing, known as guerrilla government, an employee under the Environmental Protection Agency (EPA) reported illegal and unethical acts committed by then politically appointed director of the Region 10 division, John Spencer, to the Inspector General’s Office. Spencer began his tenure from his appointment by President Ronal Reagan in 1981, promising a “pragmatic response” to environmental concerns. According to several of his subordinates, who also happened to be career civil servants with the EPA, Spencer South 9
  10. 10. committed several acts that went against federal guidelines, inappropriately spending public money. Spencer sought to buy his division a membership with a lobbying group, strictly against federal procedures and ultimately had to drop the idea as this move was disparaged by senators and environmentalist who accused him of putting the EPA in “bed with big business.” Furthermore, during his two years as the regional director, he spent public money on trips that were for his personal business, requested a personal driver, and pursued changes to the EPA office building without following the proper chain of approval by the General Services Administration (O’Leary 2006). On top of these earlier ethics concerns, the EPA whistleblowers went to the Inspector General again with more reports of corruption, including illegally lobbying the Army Corps of Engineers on behalf of a private corporation, and using official EPA stationary. Spencer acted in his official capacity as the regional administrator when committing these corrupt acts. Consequently, Spencer resigned and took a position with a private company, posing one whistleblower with a dilemma as to whether he should continue voicing his concerns over Spencer’s actions or end his pursuit. In the end, the whistleblower decided to continue to expose Spencer’s corruption for the main purpose to get these instances on public record and in case Spencer was up for future political appointments. In this example, Spencer’s corrupt activity created a vagrant distrust throughout the whole agency, creating a distinct culture of low morale and low productivity for this regional division (O’Leary 2006). While guerrilla government has its favorable actions, such as whistleblowers that expose corruption and maintain public interests, government workers take a significant amount of power that goes beyond their job description into their control. Public servants possess a great deal of power already through their daily policy decisions and drive to fulfill their official job functions, so that holding government guerrillas accountable for stepping out of their official roles and calling into question certain corrupt or unethical behavior is difficult. Though whistleblowers intend to uphold the public trust and put an end to government corruption, guerrilla government leaves a wide gap in accountability for other actions by public servants that do not necessarily seek to promote ethical government practices. Guerrilla government activity is dangerous, in that bureaucrats possess a certain amount of expertise in their South 10
  11. 11. official positions with varying degrees of discretion, so that these public guerrillas often work behind the scenes. Whistleblowers are the face of guerrilla government, where regardless of the reasoning for exposing corruption, the ultimate good and government accountability are served. The brief discussion of government guerrillas provides another lens in which to view government whistleblowers, providing a comparison of ethical discretion that has the potential for less than upright intentions. On the other hand, as government guerrillas, whistleblowers do have great capability to hold public officials and government policies responsible for corruption. In her book, The Ethics of Dissent: Managing Guerrilla Government, Rosemary O’Leary points to twelve ethical obligations to determine a common set of ethical principles among bureaucrats that vary in degrees of intensity relative to the individual, forming an internal framework of an ethical code. Obligations to the self and public interest have already been discussed as seen through Alford’s four narratives of government whistleblowers. For the remainder of this paper, the whistleblower’s obligations to the Constitution, legislation, and Supreme Court decisions will be discussed in relation to organizational-bureaucratic norms. Other obligations include a duty to serve the nation, the democratic process to serve the people’s will, a sense to uphold specific professional code of ethics, and the principle that neither family nor friends should surpass one’s obligation as a public servant. These remaining obligations are important in that each whistleblower experiences these obligations in different priorities (O’Leary 2006). The history of whistleblowing can be broken down into four distinct areas, including well-known cases, law as found in the Constitution, federal legislation, and Supreme Court rulings, as well as administrative ethics, and finally government policies that have or do exist. One of the most famous instances of whistleblowing is that of the Watergate scandal and the once anonymous “Deep Throat,” Mark Felt, who confirmed facts, supplied leads, and sketched a conspiracy with the president at the helm to the Washington Post’s Bob Woodward and Carl Bernstein. Another well-known whistleblower, Linda Tripp, secretly recorded private conversations between herself and a coworker, Monica Lewinsky, detailing Lewinsky’s physical relationship with President Bill Clinton that occurred while he was in office. Tripp not only exposed the Clinton-Lewinsky affair that occurred in the White House, but also South 11
  12. 12. revealed that Lewinsky had falsified her affidavit in the Jones v. Clinton suit and further attempted to convince Tripp to lie under oath. While corruption exists in any sector, its occurrence in government is far more consequential and drastic compared to corruption in private industry. Each of the above cases involved whistleblowers who exposed varying degrees of corruption in government. When the term corruption is presented, images of opulent private executives trading financial stocks based largely on insider tipping appear. However, when corruption is applied to government or a representative’s actions, the response is often far more severe due to the expectation for public administrators to meet a higher standard of ethical values. Public officials are given the public trust, which carries a far greater price than can be counted into a monetary sum as in private industry. In effect, you cannot put a price on the amount of trust and good faith that goes into public service work, and as such whistleblowing is encouraged, as well as provided with appropriate recourse to report corruption in government (Rohr 1998). Constitution Principles and Competence The U.S. government has grown from a fledgling democracy into the world’s global leader in economics, politics, and government administration. The United States’ status in the world derived from a small group of men, forging a government that served the people under one constitution that governed all laws and constitutions in the union. For civil employees, who are neither politically elected nor appointed, the Constitution is the oath to which they pledge to uphold. The Constitution serves as a supreme code ethics and framework for the government resides, outlining the three branches of government: executive, legislative, and judicial, which work together and serve as checks on each other’s powers. For Americans, the Constitution is a living document that protects their rights and privileges, and for public workers, the document guides their role as subordinate to all three branches (Rohr 1998). The Constitution provides whistleblowers with specific protections established for all federal workers, where a government whistleblower cannot be retaliated against in accordance with the First and Fourteenth Amendments. Under the First Amendment, government whistleblowers have a right to South 12
  13. 13. petition and make grievances in regards to the government, while the Fourteenth Amendment ensures that no person can be divested of their right to life, liberty, or property without the “due process of law,” and the appropriate legal measures have been taken to terminate a whistleblower’s employment (Kennedy 2005). Just as the Constitution ties the three powers together, it also unites these roles into the public administrator’s role, and is the glue that binds each of these branches when no agreement can be made, especially in terms of discretion. As Rohr points out, the Constitution is above all other laws, policies, or agency procedures, and as such public servants have an obligation to uphold its principles before any other public policy or law passes down to them. Public administrators are autonomous workers to the competing branches; acting independently of the branches centralized control, yet required to uphold constitutional subordination in acts of discretion because the Constitution is the best mitigating factor among them. Rohr goes on to encourage administrators to look towards the Supreme Court when making decisions based on the Constitution because the Court relies solely on it for answers to various cases that come before. Public administrators share the same thought processes that go into administrative decisions. Administrators ought to look towards their reasoning process, along with acting like legislators and executives as they play each of these roles (Rohr 1998). The weakness of the Constitution’s role is, in fact, minimal because as government workers, the administrator’s roles, along with their politically affiliated superiors throughout all three branches of government are founded on this document. The Constitution is the strongest and most uniting code of ethics for administrators and political officials alike, and as such, administrators have a duty to uphold it above all other ethical obligations. Steadfast and objective, the Constitution presents each person, regardless of status or position in life with the same, equal opportunity as any other person, with a great capacity for decision-making that covers a wide range of ethical dilemmas and provisions to amend parts of it to accommodate changing times. Legislation South 13
  14. 14. Like the Constitution, legislation for whistleblowing is critical, especially contemporaneously, where legislation provides substantive remedies and procedures by which government whistleblowers may follow. The first legislation to specifically deal with the issue of whistleblowing was the Lloyd-La Follette Act of 1912, which provided federal employees with the legal right to communicate with members of Congress, protecting them from indiscriminate dismissals from their position (Fisher 2005). Whistleblowing legislation in the U.S. has only been around for about the last century, gaining particular momentum in recent years through the Whistleblower Protection Act in 1989, WPA, which gave federal employees, who become whistleblowers on illegal government activities, protections from retaliation and job termination over these disclosures (Whitaker 2007). However, it was the Civil Service Reform Act of 1979, CRSA, that established the Office of the Special Counsel, OSC, to “investigate and prosecute” personnel practices falling under the eleven prohibited actions. This legislation arose from several incidents that occurred within the changing of federal government management, including First Amendment rights claims by employees, the increasing public suspicion of government, and the pervasive call for whistleblower reform, among others. Under the CSRA, whistleblower protection was extended to include those disclosures which proved misconduct, a major misuse of funds or authority, and a direct danger to public safety and health (Fong 1991). As it was largely in favor of whistleblowers, OSC took an aggressive stance on implementing a “streamlined dispute-resolution process,” often putting the new agency at odds with its Merit Systems Protection Board, who Congress gave the authority to consider and arbitrate the OSC’s prosecutions and who primarily focused on dismissing wasteful claims and pushing managers to terminate employment of those workers who could not meet the necessary standards of their job requirements. This tension between the two offices contributed to the scrutiny and controversy surrounding the OSC and both organizations’ inability to work together to support both of their organizational missions (Fong 1991). The WPA of 1989 amended the CRSA by increasing protection for federal employees from retaliation, due in large part to the OSC’s partially unsuccessful push to form a set of “administrative laws” to protect employees whose actions fall under this protected activity. This new act for whistleblower protection South 14
  15. 15. clearly defined the amount of evidence needed in order to prove that a protected behavior had been violated. The Act goes on to lessen the burden of proof through a “contributing factor” test that aimed to verify a causal link of the protected conduct and the employer’s personnel action, taking the focus of whistleblower protection off of the employer motivations and back onto the factors bearing on the employer’s action (Fong 1991). Another piece of legislation, the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, No FEAR Act, established guidelines for federal agencies to disseminate notice of the Act to federal employees, former employees, and applicants for employment. In fact, these agencies must post certain statistical data on the agency website to show current and past actions brought against the agency based on the No FEAR Act. In this way, federal agencies are held accountable to ensure they meet Equal Employment Opportunity standards (United States Department of State 2006). Through the No FEAR Act, federal agencies take on direct responsibility for management of such whistleblower information processing, and are held accountable as separate entities for violating whistleblower protection and anti-discrimination laws (United States Department of Treasury 2008). The Act establishes eleven data criteria by which all federal agencies must report on their websites, a few such criteria include the number of complaints filed in a fiscal year, along with the number of individuals filing those claims, as well as the average amount of time within each step of the process that an agency takes when processing these complaints (United States Government Printing Office 2002). The current Whistleblower Protection Enhancement Act of 2007, WPEA, serves as the most current adopted revision to the original WPA of 1989, expanding whistleblower protections to “certain national security, government contractor, and science-based agency whistleblowers,” as well as augmenting current whistleblower protections for all federal civil servants (Whitaker 2007). Introduced by Representative Henry A. Waxman, the WPEA provides four specific types of whistleblowers with protection involving federal employees who work for the following federal agencies: national security, contractors, scientific, and whistleblowers in general (Waxman 2007). While the CRSA instituted the OSC, this office is charged with protecting federal whistleblowers, investigating and eliminating South 15
  16. 16. prohibited personnel practices, handing out whistleblower disclosures, as well as protecting the service members’ reemployment rights. Furthermore, the OSC is the facilitating agency for wrongdoing and unethical acts within the federal government, with the authority to investigate and prosecute these complaints through its Complaints Examining Unit (United States Office of Special Counsel 2002). As time moves forward, legislation for whistleblower protection continues to be more relevant as corruption evolves and takes on new forms within government. On the other hand, with this movement forward in time, this same whistleblower legislation has gone through several reforms, building upon the previous Acts. However, these pieces of legislation negated the fact that these reforms lead to contradictions, as seen above in the CRSA’s establishment of the Office of Special Counsel and its tension with the Merit Systems Protection Board. This tension derives from the CRSA’s lack of foresight to fully detail each government body’s role in whistleblower protection and the dismissal of insufficient claims, where these distinct roles were initially suppressed for the first ten years of the CRSA’s existence. With reform comes the responsibility to clean up those elements of previous policies or legislation that failed to work or more clearly define those components that require such designation. Supreme Court Cases While the Supreme Court serves to keep the legislative and executive branches of governments’ power in check, the justices also hear cases that attend to constitutional legality in lower courts. The court ensures constitutional principles by referring back to long-standing historical precedents while maintaining a current perspective relative to the times. The following two cases, Pickering v. Board of Education and Garcetti v. Ceballos, demonstrate the Supreme Court’s check on legislative powers to provide for whistleblower protections, and also serve to present the need for boundaries on the civil servant’s right to freedom of speech. Applied to the civil servant, this dialogue between the justices represents an internal dialogue within the bureaucrat’s perception of ethical decision-making, as well as an external dialogue between the administrator and other decision-makers within the organization. These South 16
  17. 17. diverging opinions demonstrate the court’s remarkable power to capture impartial justice and reason within cases that become law. In Pickering v. Board of Education, the Supreme Court determined a two-prong test to decide when a public employee was protected by the First Amendment’s right to freedom of speech over matters of “public concern” (Sasser 2007). A woman brought suit against a school board after her position as a public school teacher was terminated based out of retaliation for a letter she wrote to the local newspaper criticizing the board’s mishandling of a tax increase meant to bring in new revenue for local schools. Pickering claimed that her termination violated her First Amendment right to freedom of speech. However, the Court sought to balance the teacher’s rights as a citizen with her duty to the public school system, developing a test that was later used in Garcetti, which narrowed Pickering’s broad scoped test. In Garcetti v. Ceballos, the Court narrowed the scope of its earlier Pickering ruling. Richard Ceballos was a deputy district attorney for the Los Angeles District Attorney’s Office, where he supervised two or three other deputy district attorneys. A defense attorney from a case prosecuted by his office informed him that one of Ceballos’s subordinates had perjured himself on an affidavit that was needed for a search warrant. The same defense attorney asked Ceballos to investigate, upon which he did and found the defense attorney to be correct. Ceballos went to his superior, District Attorney Gil Garcetti, suggesting that he dismiss the case. In the end, Garcetti chose to move forward with the case when Ceballos was called to the stand during the trial and testified for the defense, corroborating that the deputy district attorney had perjured himself. After the trial, Ceballos was demoted, transferred, and reassigned in retaliation by Garcetti for his decision to expose the corruption of the deputy district attorney who lied on an affidavit to acquire a search warrant (Wenell 2007). Ceballos filed suit under 42 U.S. §1983 against Garcetti for violating his First Amendment right to free speech and the Fourteenth Amendment right to due process. The Ninth Circuit Court applied the test from Pickering v. Board of Education, where one must first determine if the matter in question is up for “public concern,” so that if it were concluded that that it was not a matter for public concern, then the case was dropped. However, if the mater was determined to be of public concern, the Court would have to South 17
  18. 18. balance the interests of the government representative as a citizen to speak out versus the ability of the agency to effectively manage the office and ensure strong harmonious working relationships (Drachler 2008). The Supreme Court found that a “citizen who works for the government is nonetheless a citizen,” and while the employee speaks of public concern as a citizen, his or her speech restrictions should only exist when the public employer must run both efficiently and effectively. In turn, the Justices found Ceballos’s speech to be insignificant because his actions as an employee in agreeing to investigate and his later discussion of the case during the trial were actions within his official capacity, separate from his role as a citizen. In this way, he was not acting as a citizen strictly out of public concern, but in his role as a deputy district attorney, and so Garcetti could not be held liable under 42 U.S. §1983 (Wenell 2007). Public workers ought to look to these cases as a primary source to uphold their duties and protect the rights of the people, and more specifically for the public interest. In fact, the Court upholds certain values found within the Constitution, such as separation of powers that are built into their roles in deciding cases, incorporating an administrative component into the case because the Court must act according to those Constitutional values. Public workers ought to look to each of these characteristics of Supreme Court decisions to help them assess their own role in ethical decision-making. Understanding these characteristics of case law also provides administrators with insights that help to decipher among convoluted and difficult to interpret values. Additionally, these Supreme Court cases demonstrate how Constitutional values are intricately developed into bureaucratic functions, where the values themselves are complex and intermingled, and once applied to an administrator’s position, the role is laden with different perspectives of ethical decisions. Civil workers routinely face ethical dilemmas, when a position’s values and principles become habitual, go unnoticed, and lead to mistakes. When making habitual ethical decisions, civil employees neglect to stay current and compliant with public expectations. Instead, administrators ought to actively pursue ethics, looking not only to uphold the Constitution and stay within legislative burdens, but also incorporate ethical reasoning and approaches of the Supreme Court. For the whistleblower, the Supreme Court’s delineation approach to decide case law, which deals with reconciling a code of ethics, serves as a guide to reconcile administrative ethical or legal South 18
  19. 19. dilemmas. These two Supreme Court cases serve as direct ways in which the government sets out to clear boundaries for whistleblowers. The reality, as seen in Garcetti, is that government positions do not belong to the worker, but rather the agency holds control over the position. Though Ceballos was a citizen, his government role and duty to ensure the efficiency to that public office was at stake. As a whistleblower, he chose to speak out against his superior and the public office that fell into corrupt activities. He did this at great risk to his career and livelihood; however, through these cases, the Court limited the civil servant’s claim to protection for the right of free speech found in the First Amendment. These cases, for many government workers, place more limits on their freedom of speech, which unfortunately weakens the trust between public sector employees and government as an institution. Time and again, government workers are often treated, and in fact believe themselves to be “second-class citizens,” which is evident in the legal restrictions placed upon them as public servants. Examining this common perception of the civil worker’s status in society reveals the effects and limits placed upon his or her role from the rulings in Pickering and Garcetti. In looking at the language of the Constitution, the rights guaranteed by the due process clause in the Fifth and Fourteenth Amendments are provided for “persons” and not citizens. Another work by John Rohr, “Citizenship and the Professional Public Servant,” provides an insight into government workers as second-class citizens, and therefore as applied to whistleblowers in government connects the reasoning behind these Supreme Court decisions and the strength that emerges from putting such limits on the public servant’s freedom of speech, which in turn impact whistleblowers. While the common thought among government employees is that these cases limited their rights as citizens, Rohr points out the honor that goes into working as a guardian of the public trust and interest, which balances these limitations. Though the civil worker does not prefer to be either a second-class citizen or a second-class person, the difference resides in the meanings of citizen and non-citizen. Both alien residents and citizens of this country pay the same taxes, can be called to serve in the military, and are guaranteed the same protections of life, liberty, and property. However, one traditional difference between the citizen and the alien resident revolves around the privilege to vote, where only twenty-two states throughout different South 19
  20. 20. points in American history permitted alien residents to vote. Furthermore, until the Nineteenth Amendment, women could be considered citizens, and yet did not have the right to vote, so that citizenship did not change, rather the Constitution was amended. For these reasons, voting is not constrained by citizenship, so that the idea of second-class citizenship has little to do with differences in citizenship, and more to do with the perception of a public worker’s status (Rohr 1984). That being said, through legislation, specifically the Hatch Act, government employees are restricted from actively participating in the political electoral process in their official capacity. Prohibited political activity includes any form of solicitation to encourage or discourage partisan politics for a political party, as well as receiving political contributions and running for political office (Rohr 1984). These types of political activity are prohibited when government workers perform in their official position, in a government office, representing the government while wearing an official uniform or operating a government vehicle (U.S. Office of Special Counsel 2002). This Act impedes on the civil worker’s right to the freedom of speech, restricting their political activity because this creates biases and ultimately corruption within the government, which exists to serve the public interest, not a particular partisan agenda. For government employees, the Hatch Act takes away certain rights they have as citizens, but redeems this loss in “citizenship” is redeemed by the authority and discretionary powers by which government employees perform their duties as public guardians (Rohr 1984). Beyond politics, government workers serve the public, and thus his or her job belongs to the greater good of the public interest. The public ownership of civil positions leads to the other side of whistleblowers in government, who do not have infinite power to act as they please; utilizing guerrilla government tactics to get ahead by exposing corrupt practices. While it is assuredly a positive instance when corruption is revealed, whistleblowers who abuse that power under the veil of whistleblower protection laws serve a negative cause. Discretion exists on a continuum and is open to mistakes as those who have the discretion are human with the capacity for wrongdoing. South 20
  21. 21. The trust placed in the government worker is a distinct privilege with the authority to spend public money and make policy decisions that affect all of the people. As important as building whistleblower protection for government employees into federal legislation through adopting the CRSA, WPA, No FEAR, and WPEA laws, the Supreme Court serves to balance, particularly in Pickering and Garcetti, this power to ensure the role of the civil servant limits those protections. The Courts hold that the supreme power resides in the people and that trust in government supplants the role of the civil servant. In this spirit, Pickering and Garcetti, limit the civil servant’s right to free speech when it impedes or significantly hinders efficient and effective government practices. These rulings do not contradict whistleblower protection laws, but rather reign in heedless claims and reckless law suits that strain the government to such an extent that renders it unable to effectively fulfill the public interest. The purpose of government, and subsequently its employees, is to provide services to the public that are uniquely entrusted to them, so that when this process is hindered the greater good is not achieved. Concluding Thoughts Ethics is more than understanding the differences between right and wrong. Ethics is the act of doing right or wrong, where government workers, in particular, should apply it throughout their role as public servants, known as administrative ethics. Ethics, like other intangible concepts, prove difficult to identify a specific meaning, as these decisions are subjective to individual discretion. In this way, one person’s ethical standards different from another person’s ethics. These standards are determined through discretion, which considers the various pressures and responsibilities that influence a particular decision. Administrative discretion is evident throughout all levels of government, where even front-line bureaucrats must use discretion when attending to public inquiries and requests for services. Decision-making, regardless of the situation, involves considering both internal and external conflicts of principles. Discretion is essential to administrative ethics, where these internal principles are comprised of the administrator’s moral standards, which may or may not conflict with the expectation of the public organization. Administrative discretion is the public administrator’s capacity to employ ethical approaches relevant to the situation, in order to decide among various alternative solutions that arise while South 21
  22. 22. working in the organization. The conflict relationship between these personal values and the organizational objectives demonstrates the need for administrative discretion in ethical decision-making. Recommendations As the face of government, public workers have a duty to uphold a certain standard of administrative ethics, and so the recommendations begin here because discretion resides in the government employee. A public servant’s moral code and internal values include the innate recognition of right and wrong, socio-cultural beliefs, and those principles found in the Constitution. Throughout their public service career, a public administrator will encounter a wide array of ethical predicaments that challenge their morals, encountering situations where they must choose between their job and their ethical standards. As the backbone of ethical principles in public administration, the Constitution is always right. Regardless of any government branch’s policies, agency directives, or public demands; the Constitution will always succeed in a court of law. In fact, administrators who are constitutionally competent in the work they produce and the decisions they make, are not only ethical for basing their discretion on the Constitution, but are also protected from legal prosecution. Consequently, it is imperative for government to ensure appropriate whistleblowing practices and other ethical decisions; the public servant should not only look to the Constitution, but also strive to be constitutionally competent. This practice of constitutional competence transcends the words and legal language on the pages of the Constitution, drawing upon the Supreme Court’s role as the final decision-maker in regards to interpreting the Constitution in cases that arise. If more administrators were constitutionally competent, then government would be more transparent and be held accountable to the public will. Whistleblowing is a tool that public employees ought to use as a last resort, as well as the most severe way to expose corrupt activities and make certain the government is accountable in the interests of the public. My main recommendation for whistleblowing legislation exists in the need to restructure these reform acts, so that government employees, their supervisors, and those agencies, like the OSC, investigating such claims speak the same legal code. In fact, I would even suggest legislatures take a look at the best and most effective parts of these acts and reorganize these statutes into one whistleblower law South 22
  23. 23. to replace the other, more outdated acts. WPEA of 2007, was an attempt to reform the WPA of 1989 by extending protections to those working national security, yet missed the mark by failing to change the language of the previous act. Moreover, this reform did not account for Supreme Court rulings such as Pickering and Garcetti, which place boundaries around a government employees’ freedom of speech, as it relates to public concern and government efficiency. In conclusion, a future single act of legislation for whistleblower protection must account for the best components of previous acts, while leaving out the elements that prove ineffective or in contradiction to the boundaries set by Pickering and Garcetti. South 23
  24. 24. Bibliography Books: Alford, C. Fred. (2001). Whistleblowers: Broken Lives and Organizational Power. Ithaca: Cornell. deLeon, Peter. (2005). Cowboys and the New Public Management. In Ethics in Public Management, ed. H. George Frederickson and Richard K. Ghere, 206. Armonk, NY: M.E. Sharpe. Kennedy, Caroline. (2005) United States Constitution: What It Says, What It Means: A Hip Pocket Guide. New York: Oxford Press. O’Leary, Rosemary. 2006. The Ethics of Dissent: Managing Guerrilla Government. Washington, D.C.: CQ Press. Rohr, John. (1998). Public Service, Ethics, and Constitutional Practice. Lawrence, KS: University of Kansas Press. Peer-reviewed Journals: Alford, C. Fred. (2001). Whistleblowers and the Narrative of Ethics. Journal of Social Philosophy, 32(3), 402-418. Retrieved October 2, 2008 from Blackwell-Synergy Jokic, Aleksandar. (2002). Supererogation and Moral Luck: Two Problems for Kant, One Solution. Journal of Value Inquiry, 36(2-3), 221-33. Retrieved November 2, 2008 from ABI/INFORM Global database. Rohr, John, Chandler, Ralph Clark. (1984). Civil Servants and Second-Class Citizens/Response/Discussion. Public Administration Review: Special Issue 44(135) Retrieved on November 2, 2008 from ABI/INFORM Global database. Thorpe, Lucas. (2006). The Point of Studying Ethics According to Kant. Journal of Value Inquiry, 40(4), 461. Retrieved November 2, 2008 from ABI/INFORM Global database. Ventriss, Curtis and Shane M. Barney. (2003). The Making of a Whistleblower and the Importance of Ethical Autonomy: James F. Alderson. Public Integrity, (5) 4, 355-368. Retrieved on October 2, 2008, from ABI/INFORM Global database. Law Reviews and Journals: Drachsler, David A. (2008). Public Employee Whistleblowers After Garcetti v. Ceballos. Labor Law Journal, 59(2), 201-208. Retrieved September 15, 2008, from ABI/INFORM Global database. Fong, Bruce D. (1991). Whistleblower Protection and the Office of Special Counsel: The Development of Reprisal Law in the 1980s. American University Law Review, 20. Retrieved on September 15, 2008, from LexisNexis Academic. Sasser, Jamie. (2007). The Silenced Citizens: The Post-Garcetti Landscape for Public Sector Employees Working in National Security. University of Richmond Law Review, 41. Retrieved on September 15, 2008, from LexisNexis Academic. South 24
  25. 25. Wenell, Julie A. (2007). Garcetti v. Ceballos: Stifling the First Amendment in the Public Workplace. William & Mary Bill of Rights Journal, 16. Retrieved on September 15, 2008, from LexisNexis Academic. Government Documents: Fisher, Louis. (2005). “National Security Whistleblowers.” CRS Report for Congress by Federation of American Scientists. (December 30, 2005). Congressional Research Service publications. Retrieved on November 2, 2008, from http://www.fas.org/sgp/crs/natsec/RL33215.pdf United States Department of State: Office of Attorney recruitment and Management. (2006) No Fear Act. Retrieved on November 2, 2008, from http://www.state.gov/s/ocr/rls/76101.htm United States Department of Treasury. (2008). No FEAR Act. Retrieved on November 2, 2008, from http://www.ustreas.gov/nofearact/ United States Government Printing Office. (2002) Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002. Retrieved on November 2, 2008, from http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi? dbname=107_cong_public_laws&docid=f:publ174.pdf United States Office of Special Counsel. (2002). The Role of the U.S. Office of Special Council. Retrieved on September 13, 2008, from http://www.osc.gov/documents/pubs/oscrole.pdf Whitaker, L. Paige. (2007). CRS Report for Congress by Federation of American Scientists. (March 12, 2007). The Whistleblower Protection Act: An Overview. Congressional Research Service publications. Retrieved on September 13, 2008, from http://www.fas.org/sgp/crs/natsec/RL33918.pdf Waxman 2007 South 25