Whistleblower protection in the United Nations

SMC-II/XXX 06 June 2013 Whistleblower protection in the United Nations Paper submitted by the Working Group on Investigations, Disciplinary Matters and Administration of Justice (WG AOJ) A) Background 1. The Working Group on Investigations, Disciplinary Matters and Administration of Justice (WG) has consistently expressed concerns about protection of whistle-blowers in the United Nations. At its last video-conference meeting, it discussed the latest developments with the landmark whistleblower case of Wasserstrom, which highlighted weaknesses in the protection of whistle-blowers from retaliation. The WG reiterated the importance to strengthen internal protections against whistleblower retaliation in the UN, and agreed to monitor the issue closely with a view to contributing to such efforts when the opportunity arises. Subworking group on investigations and disciplinary matters has also stressed the need to strengthen the whistleblower protection system by pointing to numerous weaknesses in investigations and disciplinary proceedings and has continued to address those weaknesses. 2. At its 69th session, the International Civil Service Commission recognized that whistleblower protection is among a number of ethical issues facing the organizations which was not adequately reflected in the former standards of conduct. The newlyadopted standards of conduct for the international civil service clearly state that an international civil servant who reports a breach of the organization s regulations and rules in good faith or who cooperates with an audit or investigation has the right to be protected against retaliation for doing so (Annex IV, para. 20, A/67/30). 3. Pursuant to section 1.1 of ST/SGB/2005/21, staff members have a duty to report any breach of the Organization s regulations and rules. When such reports are made in good faith, they are entitled to protection against retaliation. Section 1.3 provides that retaliation against individuals who have reported misconduct violates the fundamental obligation of all staff members to uphold the highest standards of efficiency, competence and integrity. 4. In at least three cases, staff members have filed applications with UN Dispute Tribunal (UNDT), challenging a determination made by the Ethics Office that they were not subject to retaliation. 5. The Secretary-General stated previously that a determination by the Ethics Office regarding retaliation should not be subject to challenge before the UNDT. As the independent status of the Ethics Office prevents the Secretary-General from instructing the Office how to make its determination of retaliation, the Secretary-General claimed he cannot be held liable for determinations made by the Office, even if they subsequently prove to be flawed (para. 276, A/66/275). 1

6. However, the President of the UNDT in his letter to the General Assembly stressed that in Hunt-Matthes and Wasserstrom, UNDT determined that decisions of the Ethics Office not to find prima facie retaliation have direct consequences for the rights of the applicants, thus making them appealable administrative decisions (A/66/507). This issue is yet to be determined by the UN Appeals Tribunal. 7. In light of the foregoing and given the increasing number of cases brought by staff through the formal system of the Administration of Justice, the WG presents below its conclusions and recommendations from the two most emblematic cases on the whistleblower protection. B) Hunt-Matthes 8. Caroline Hunt-Matthes made numerous disclosures regarding UNHCR practices: disclosures about interference/obstruction into an investigation of an alleged rape of a UN staff member in Sri Lanka by another staff member; the decision of the Inspector- General s Office (IGO) to hire a staff member who was himself under investigation by the IGO; the failure to register a sexual harassment complaint against the High Commissioner; the unlawful detention of refugees by senior UNHCR staff, leading to the death of a refugee while in detention; and a report of sexual exploitation of a refugee by a staff member. 9. In Hunt-Matthes UNDT/2011/063, UNDT s considered whether the decision of the Ethics Office amounts to an administrative decision. It found that when a claim relates to issues covered by ST/SGB/2005/21, a staff member is entitled to certain administrative procedures and that if he or she is dissatisfied with the outcome, he or she may request judicial review of the administrative decisions taken. 10. The judge concluded that the determination of the Ethics Office falls under its jurisdiction and as such, is competent to examine the administrative activity followed by the Administration after the Applicant s complaint of retaliation, and to decide if the action was taken in accordance with the applicable law. The decision of the Director of the Ethics Office communicated to the Applicant is an administrative decision for the purposes of article 2.1(a) of the UNDT Statute and accordingly, the application is deemed receivable. 11. In Hunt-Matthes UNDT/2013/085, UNDT considered if the Ethics Office was required to enquire whether the protected activities claimed by the Applicant were a contributing factor to the negative Performance Appraisal Report (PAR) and the subsequent non-renewal of her contract. The judge concluded that the Ethics Office had to establish whether the Administration could prove by clear and convincing evidence that it would have taken the same action absent the protected activity. It was not obliged to investigate the Applicant s complaint of retaliation. It only had to determine if there was a credible case of retaliation and, if so, refer it to OIOS for substantive investigation. 12. The judge stated that the Office overlooked or ignored information provided by Hunt-Matthes and failed to take into account the evidence before it regarding the list of parties to whom she d made a protected disclosure. The Tribunal held that the Ethics Office erred by relying on the PAR as the sole explanation for the decisions of the 2

Administration not to renew her contract. The Ethics Office took into account unverified facts and opinions about the Applicant and her performance, and failed to properly consider the Applicant s allegations of maladministration that gave rise to her complaints in the first place. 13. The case officer had a negative attitude toward the Applicant s case and wrote information in her case file that was factually incorrect. By failing to properly assess whether there was a link between the reporting of misconduct and the alleged retaliation, the Ethics Office denied or radically limited the protections that the Secretary-General clearly intended to afford to UN staff members. 14. The Ethics Office did not assess the Applicant s claim in conformity with the correct obligations, principles and standards because: i) It applied the wrong criteria in considering whether the Applicant had engaged in protected activities; ii) It overlooked her reports of misconduct; and iii) It failed to identify that the retaliatory acts alleged by the Applicant were the findings of unsatisfactory performance and subsequent nonrenewal. UNDT awarded the Applicant USD 8,000 for the stress and anxiety caused by the breaches committed by the Ethics Office. 15. In Hunt-Matthes UNDT/2013/084, the Tribunal upheld Hunt-Matthes claim that the negative PAR and the non-renewal of her Fixed-Term Appointment were acts of retaliation against her. Her performance was not correctly evaluated in accordance with the regulations and policies in force at the time and the Administration chose to mischaracterize her allegations as poor performance rather than to properly investigate them or refer one of them to OIOS, as she requested. 16. The judgment documents numerous shortcomings in the investigative procedures at UNHCR, including instances of overt interference from senior officials in the conduct and outcome of investigations designed to manipulate the whole process to get certain outcomes. The judge concluded that the failure of OIOS to investigate 1 and call these individuals to account as requested contributed to the costs to the Organization as ordered by this Tribunal. 17. The judge awarded Hunt-Matthes one year s full salary with full benefits, as well as USD 50,000 in moral damages. In addition, the judge awarded her additional GBP 6,074.50 in legal fees. Finally, UNDT referred a matter to Secretary-General Ban Kimoon for possible action to enforce accountability. C) Wasserstrom 18. James Wasserstrom served at the UN Mission in Kosovo (UNMIK) and, in 2007, disclosed a possible kickback scheme involving local politicians and senior UNMIK officials related to a controversial proposed power plant. After his whistleblowing came to light, he was detained by UNMIK police officers on trumped-up charges, his home and person were illegally searched, his photograph was posted on all UNMIK premises barring his entry, his post was abolished and he was subjected to criminal and administrative investigations. After the conclusion of several reviews and investigations that found that 1 See also 2009 letter to the U.S. Ambassador to the UN, in which Government Accountability Project raised concerns about the failure of the OIOS to investigate this case specifically. 3

there had been no retaliation against Wasserstrom, his contract was terminated in November 2008. 19. When Wasserstrom s superiors at UNMIK became aware of this investigation, they undertook actions that were later determined to have been retaliatory. In June 2007, Wasserstrom filed a complaint with the Ethics Office and sought protection as a whistleblower. The Office reviewed the complaint and on 29 July 2007 issued a letter with their finding that a prima facie case of retaliation existed in his case. It then referred the case to the OIOS for a full investigation. 20. OIOS conducted an investigation into Wasserstrom s complaint of retaliation and the Investigation Report containing several annexes was submitted to the Ethics Office in April 2008. OIOS concluded that no retaliation against Wasserstrom had taken place. 21. The Ethics Office reviewed the Investigation Report and informed Wasserstrom of the outcome of the investigation that no retaliation was found in his case. Wasserstrom responded that the OIOS Investigation Report contained misstatements of facts and requested that his case be investigated further. His request was subsequently brushed off by the Ethics Office, as the relevant provisions in ST/SGB/2005/21 did not call for further action. 22. In October 2008, Wasserstrom filed a complaint with the internal justice system claiming the Ethics Office had failed in its responsibilities to protect him. In July 2009, the case was transferred to the UN Dispute Tribunal. 23. In Wasserstrom UNDT/2012/092 on liability, the Tribunal concluded that Wasserstrom made his report of potential misconduct in good faith and that the burden of proof lies with the Administration to provide clear and convincing evidence that the same actions would have been taken absent the protected activity. The Ethics Office failed to do this and consequently committed an error of law and procedure. 24. The OIOS Investigation Report and its annexes contained factual inconsistencies and it was the responsibility of the Ethics Office to question and clarify them. It failed to do so. During the criminal and administrative investigations against Wasserstrom, his due process rights were violated. Neither OIOS in its report nor the Ethics Office in its review of the report questioned the excessive authority assumed by the UNMIK international prosecutor and pre-trial judge. The Ethics Office failed to ascertain the reasons for the humiliating and degrading treatment that Wasserstrom had been subjected to. Therefore, the Office s finding that no retaliation had taken place was fundamentally flawed. 25. In Wasserstrom UNDT/2013/053 on relief, the Tribunal dismissed Wasserstrom s claim for compensation for lost earnings and benefits because it was UNDP and not the Ethics Office that terminated his contract. The judge awarded the maximum award of USD 50,000 in non-pecuniary damages for the anxiety, stress and loss of reputation. The Respondent manifestly abused the proceedings by refusing the Tribunal s Orders and by not granting full access to the OIOS Investigation Report. The judge awarded USD 15,000 to compensate in part for Wasserstrom s expenses in legal costs. 26. Both parties have filed appeals with the UN Appeals Tribunal in May 2013. The Secretary-General s appeal challenges both the merits of the UNDT findings, as well as 4

the amount of compensation awarded. Wasserstrom s appeal claims that the award he was granted was insufficient and that UNDT misapplied the burden of proof standard for whistleblower cases resulting in an unreasonable decision. In a letter dated 8 April 2013 to US Secretary of State Kerry, Wasserstrom urged the US Government to withhold 15 per cent of its contributions to the UN budget in accordance with the 2012 US Consolidated Appropriations Act (H.R. 2055). D) Conclusions and recommendations 27. The General Assembly noted the Secretary-General s intent to review the existing whistleblower protection policy and asked him to submit a report for its consideration at its 69 th session (para. 75, A/67/816). It also requested the Secretary-General to report on improvements made in the process for reporting misconduct, fact-finding and resolving situations resulting from misconduct, including, but not limited to, the following issues: (a) The relationship between the policy administered by the Ethics Office and the various oversight, adjudicative, disciplinary and dispute resolution mechanisms of the Organization; (b) Internal mechanisms for reporting misconduct, including through the supervisory chain of command; (c) Mechanisms external to divisions for reporting misconduct (para.77, A/67/816). The Secretary-General announced at a press conference in April 2013 that consultants had been hired to conduct such a review. 28. Fundamental weaknesses and flaws of the Ethics Office were highlighted by the above cases. First, the question is whether, as an office directly reporting to the Secretary-General, it can perform its functions in a truly independent and impartial manner. Secondly, the Office has a poor record of substantiating retaliation. Available statistics reveal grave shortcomings in the functioning of the Ethics Office. According to the research by Government Accountability Project, approximately 343 protection against retaliation inquiries were received by the Ethics Office from 2006 through July 2012. Following a preliminary review in 87 of these cases, it found only nine prima facie cases of retaliation. After further review, the Ethics Office found in favour of only one whistleblower, ultimately rejecting 99.7 per cent of retaliation claims. 29. The Ethics Office has also misapplied the burden of proof in retaliation cases which lies with the Administration. The Office is under-resourced, which seriously hampers its capability to study all complaints of retaliation brought to it for review fairly and competently. 30. The poorly conducted and documented investigation, containing factual inconsistencies, calls into question OIOS s competence to carry out complex investigations. OIOS has previously refused to investigate retaliation cases (Dzuverovic UNDT/NBI/2012/006). This lack of cooperation seriously undermines the Ethics Office s ability to protect whistleblowers. OIOS has also refused to make investigation reports public, which undermines transparency and accountability. 31. There are also weaknesses in the UNDT and UNAT statutes, including the cap on compensation awards, barring judges from awarding punitive or exemplary damages, making it difficult for judges to award costs to successful litigants, and the very short 60-day statute of limitations (best practice in whistleblower cases is at least 6 months) that makes it difficult or impossible for potential whistleblowers to gather sufficient documentation and evidence. 5

32. As one of the key stakeholders in the protection of whistle blowers, staff unions should participate in the review of the UN s whistleblower protection policy. 33. The UN whistleblower protection policy should be urgently reformed. In this context, the WG recommends the following issues for the Secretary-General to consider: a. Discipline retaliators in validated whistleblower cases. b. Adhere to orders and judgments issues by UNDT and UNAT in whistleblower cases. c. Re-adjudicate retaliation claims that were improperly declined by the Ethics Office. d. Institute mandatory training programmes on whistleblower protection and retaliation. e. Given the high number of Secretariat staff working under UNDP contracts, encourage all UN funds, programmes and agencies that have their own whistleblower policies to adhere to minimum standards of ST/SGB/2005/21. 6