Failure of ABOR to Protect Whistle-Blowers

Whistle-blowers who report waste, fraud or abuse of authority at the universities often receive extreme reprisals (see article "Marguerite Kay – Whistle-blower Reprisals ). Legislators have pressured the Arizona Board of Regents (ABOR) to improve protections for whistle-blowers on the campuses.

The ABOR has now adopted a new policy (see <http://aaupaz.org/ABOR_wbp.htm>). However, this new policy has fatal flaws preventing it from offering real protection to whistle-blowers.

Conceptually the ABOR policy cannot be credible as a constructive contribution until it requires 1) objective, independent decision-makers free from conflict of interest; 2) guaranteed due process for a fair hearing; 3) realistic, modern burdens of proof consistent with the Federal Whistleblower Protection Act; and 4) the realistic ability to be made whole after proving illegal discrimination, as well as to pay for the cost of winning. Each of those minimum requirements is a prerequisite for legitimacy. The ABOR whistle-blower policy has none.

In particular, while the ABOR policy provides for arbitrators, the only arbitrators allowed are those paid by the administration side. Arbitrators paid by one side are intrinsically biased. In addition, in a hearing by an arbitrator, the ABOR policy states "The purpose of the hearing is to determine whether an adverse personnel action resulted from the complainant’s prior disclosure of alleged wrongful conduct. No other issues or determinations are authorized." The arbitrator is not allowed to require reversal of the reprisal, or any amelioration of the situation. This is not real arbitration.

The administration alone decides if an employee claiming a whistle blower reprisal deserves to be able to go to an arbitrator. A university employee should be able to go to an independent arbitrator, chosen by mutual consent of the two parties, and the decision to go to arbitration should be entirely up to the employee. The cost of an arbitrator, if paid equally by both sides, would prevent frivolous use of such a policy.

The ABOR policy does not guarantee due process for a fair hearing. Section 6-914.J.4 cancels the rules of evidence and procedure that govern credible proceedings.

Under the ABOR policy, the hearing officer must decide whether the adverse personnel action was or was not "based" on a prior disclosure. This standard, in practice, is unprovable. In fact, this standard was used in the NAU case of Dr. Amy Brown, where the Department Chair admitted that his termination of Dr. Brown was because of her whistle-blowing on his misuse of the $1.6 million Cowden fund, but he also said that he was prejudiced against women faculty members. Since there were two reasons for the termination of Dr. brown, the NAU President ruled that the termination of Dr. Brown was not based on a reprisal for whistle-blowing. The proper level of proof is whether a disclosure (or whistle-blowing) is a contributing factor to an adverse personnel action, as in well tested federal law.

The ABOR policy lacks a provision allowing compensation for all costs of an employee who has proven improper reprisals after making a disclosure. State employees, by contrast, can recover attorney fees, costs, back pay, general and special damages and full reinstatement for any reprisal and thus can be "made whole," rather than face bankruptcy from legal fees, when they prevail in a hearing.

A more complete list of flaws is given at <http://aaupaz.org/loop_ABOR.htm>.

The ABOR Whistleblower Policy is incomplete at best, and likely to be counterproductive in practice. It would be a kiss of death for any whistleblower relying on it.