Loopholes in the ABOR whistle-blower proposal

 

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.

 

The ABOR has created a whistle-blower protection policy to supercede all current university whistle-blower policies. The universities are exempt from the Arizona state law protecting whistle-blowers as long as they have in place an internal whistle blower protection policy (A.R.S. 38-531, 38-532, 38-533).

 

The ABOR whistle-blower policy fixed 11 of 30 loopholes that were in their December 2000 version of the proposed policy.  The 30 loopholes in the December policy were identified by attorney Tom Devine, the international expert on whistle-blower policies, Legal Director of the Government Accountability Project (GAP). GAP is the major national organization which deals with whistle-blower issues, and they act as consultants to the IMF to offer whistle-blower policies to help stop corruption internationally. A list of the 30 loopholes in the December ABOR policy were sent to members of the ABOR. Eleven of the more minor loopholes were fixed.

 

The remaining 19 serious loopholes in the ABOR whistle-blower policy are given below.

 

Loopholes in ABOR policy

 

"6-914 Whistle-blowing Policy and Procedures":

 

1. The Purpose section (6-914.A) limits the Policy to adverse personnel actions. This is far too narrow, because the traditional scope of whistleblower harassment is much broader. Examples include filing criminal charges, issuing false internal charges of

scientific misconduct as a prerequisite for adverse actions against those challenging it, attempts to obtain deportation orders or otherwise threaten visas, requests for government investigations, and changes in academic standards. The proposal must cover

"any discrimination" that materially prejudices the interest of a person protected by the Policy.

 

2. The Purpose also defines a whistleblower as one who suffers an adverse action after making a disclosure. That is tardy.  Under federal law, a person becomes a whistleblower by engaging in freedom of dissent and making the disclosure. It is not

necessary to wait for retaliation.

 

3. The proposal's Applicability section (6-914.C) is too narrow. The National Labor Relations Board ("NLRB") requires universities to provide the same employment rights to graduate students as to traditional employees. The HHS Commission on Research Integrity ("CRI") received testimony from numerous graduate students who were indispensable to blow the whistle on scientific misconduct, and then had their careers aborted through academic retaliation.

 

4. The same section only bans personnel actions "in knowing retaliation for" whistleblowing. It does not matter to the public whether there was ill will or hard feelings behind discrimination. What is significant is whether the personnel action may conceal

misconduct by cutting off the flow of information from those willing to bear witness -- either by removing them, creating a credibility smokescreen over their testimony, or frightening others into silence. The Policy should eliminate this false boundary

by banning discrimination taken "because of" protected activity, as Congress did in the Whistleblower Protection Act of 1989.  ("WPA") The causal link removes the irrelevant requirement for victims to prove animus. For consistency, sections 6-914.E.11

and 6-914.E.20 should be analogously modified.

 

5. The same section limits protection to an actual "disclosure" of misconduct. To comply with federal law in over a dozen statutes and state law such as the District of Columbia, the Policy should protect against discrimination taken because an employee is "about to" engage in protected activity. This precludes gag orders and preemptive strikes that silence whistleblowers in advance. The Policy also should protect those "perceived" of engaging in protected activity, to guard against guilt by association. These indirect contexts often can have the most significant potential to lock in secrecy by silencing

employees. For consistency, sections 6-914.E.6 and 6-914.E.11 should be analogously modified.

 

6. The proposal should be amended to protect "refusal to violate the law." This is whistleblowing through deeds rather than words. Walking the talk is of far greater significance to the public. Freedom of dissent can be relatively ineffective in stopping a

fait accompli.

 

7. The definition for "abuse of authority" in section 6-914.E.1 is too narrow for consistency with federal law. While it covers discrimination in carrying out job duties, it does not include analogous favoritism. Arbitrary benefits for the "old boys network,"

"buddy systems" or other insider favoritism are a common dimension for abuse of authority, and must be covered within the boundary of protected whistleblowing disclosures.

 

8. The definition in section 6-914.E.1 artificially limits the scope of actionable personnel actions to those on a list. That is unacceptable, because realistically the list is inherently incomplete. The forms of harassment are limited only by the imagination, and analogous lists traditionally have been circumvented by creative acts of reprisal. The list does not even include all the illustrative items included in federal statutes. The WPA also includes mandatory psychiatric examinations, retaliatory investigations, failure to provide training, and "any other significant change in duties, responsibilities or working conditions." (For

additional forms of harassment relevant for a university context, see #1, supra.) In order to preclude potentially limitless loopholes, these forms of harassment because of protected activity should be added to the list, which should be presented as "examples of" adverse personnel actions, rather than the boundaries. Consistent with #1, supra, adverse personnel actions should include "any discrimination," which materially prejudices an employee’s interests, instead of limiting it to "an employment-related act or decision … which affects an employee negatively."

 

9. For consistency with federal law, the definition of "mismanagement" in section 6-914.E.12 should specify that the arbitrary action "interferes with the efficient accomplishment of the institutional mission."

 

10. Corrective action to solve problems or impose accountability for misconduct is the point of any whistleblower protection statute. As a result, laws such as the federal WPA provide for mandatory investigations and reports to resolve the allegations in any disclosures that qualify as protected speech. Unfortunately, section 6-914.F only permits the university to investigate alleged misconduct exposed by the whistleblower. There is no duty to investigate, requirement to consider necessary corrective action, or transparency protecting the right to know for affected public bodies or citizens. For consistency with federal law, the regulations should require the university to investigate, followed by a report of findings and relevant corrective action commitments, available to the public and referred to all public bodies with relevant legal responsibility. The corrective action structure also should provide for anonymous disclosures. As the authors of the Whistleblower Protection Act explained in that law's legislative history, "It is unrealistic to expect whistleblowers to help in the struggle against waste if they risk the exposure of their names and possible retaliation." 135 Cong. Rec. 5033 (1989). If there is fear of retaliation, The federal structure can be found in 5 USC 1213.

 

11. Sections 6-914.H and J.4 create a composite burden of proof. This standard is critical, because it determines the rules for a whistleblower to win or lose on the merits when challenging alleged discrimination. Section 6-914.H provides that the

employee still loses if the action were taken "for legitimate reasons or cause under university rules and policies." Subsection J.4 applies a preponderance of the evidence test for all contexts. This burden of proof is indefensible. It constructs an unprecedented legal barrier for whistleblowers to win when asserting their rights. It is inconsistent with existing federal law, the HHS proposed regulations, and the emerging trend from local to

international law. The modern burden of proof for whistleblower disputes is that an alleged victims establishes a prima facie case by demonstrating that protected activity is a "contributing factor" to alleged discrimination. At that point, the burden of proof shifts to the employer to prove legitimate, independent justification "by clear and convincing evidence."  If the Policy is to have any legitimacy, that standard must be institutionalized for all prohibited discrimination against any person protected by the Policy. It is the standard governing cases in the federal Whistleblower Protection Act, analogous federal laws for nuclear and aviation workers, state and municipal statutes ranging from California to the District of Columbia, and even international institutions such as the Organization of American States and the World Bank. Federal statutory law requires this

standard in the proposed HHS regulations that will cover Arizona universities where PHS funding is involved for medical research. As a result, failure to apply it in the Policy guarantees universities will have to adjudicate whistleblower cases under two different sets of ground rules to determine a victor.

 

12. The same flaw exists in section 6-914.J.1, which provides for external hearing examiners. Here the proposal may institutionalize conflict of interest, since the examiners are selected and paid by the university. No whistleblower rationally can have confidence in getting a fair hearing from a judge who works for the defendant. Unless this flaw is corrected, the Policy will

 

and should remain largely dormant. This is particularly true, since the Policy precludes any judicial review. The solution is simple. As provided by voluntary HHS guidelines already in effect for alternative disputes resolution of whistleblower cases, both parties should select a decisionmaker by mutual consent. The decisionmaker's fee should be split if the case is dismissed on preliminary grounds, or paid by the university if the hearing proceeds.

 

13. Section 6-914.J.2 gives the university an institutional veto power over whether there will be a hearing at all. That creates a dispositive conflict of interest which cancels any guarantee even of internal due process. The Policy cannot be taken seriously unless the possibility for a hearing becomes a right.

 

14. Section 6-914.J.4 cancels the rules of evidence and procedure that govern credible proceedings. It strips the employee's right to a meaningful hearing, even if the university permits a token proceeding. Without guarantees of due process within the proceeding, employees have no reason to believe the hearing will not represent a kangaroo court where they are not even allowed to make a case or confront critical witnesses. Streamlined procedures commonly are available in Alternative Disputes

Resolution, imposed either after negotiated agreement or by a decisionmaker whom the parties selected through mutual consent. In the absence of that evenhanded approach, reprisal victims should avoid the Trojan Horse offered by this Policy.

 

15. Section 6-914.J.7 permits the hearing examiner to reverse an adverse personnel action, but does not allow the examiner to provide relief for associated consequences of the discrimination. This limit, which again is inconsistent with established federal

law, means it is structurally impossible for most whistleblowers who prevail to be made whole. Common additional consequences include associated medical bills, higher interest rates due to interruption of income, and similar indirect but tangible side effects of harassment. Many whistleblower laws or torts provide extra compensation through punitive damages or double back pay. At a minimum, however, any credible whistleblower protection policy must allow the harassment victim to get back to even through being made whole. This Policy fails to pass that minimum test.

 

16. The Policy also fails to provide attorney fees and related litigation costs for employees who prevail. This also makes credibility hopeless. The proposal bars university counsel if an employee has no attorney, but that is disingenuous at best in a

system where the university picks the hearing examiner. Counsel is a necessity for any realistic expectation of not pursuing an exercise in futility. Fees and costs commonly reach five to six figures. Unless that expense can be recovered, whistleblowers

cannot afford to assert their rights, even to win. Without a meaningful right to counsel through reimbursement after prevailing, the Policy is a mirage.

 

17. Unlike the proposed ORI regulations, there is no provision for interim relief, either to neutralize faits accompli causing irreparable harm, or during appeals. Delays could prolong the consequences of harassment for semesters or years. That could limit many whistleblowers to Pyrrhic victories, at best.

 

18. The Policy should include a transfer preference for whistleblowers who prevail, where relevant. It can be unrealistic to go back to work for a supervisor whom an employee has just defeated in a lawsuit. In order to prevent repetitive reprisals that

cancel the Policy’s impact, those who prevail must have a strong transfer preference for a realistic chance at a fresh start after winning. 

 

19. For viability, the Policy must contain an "anti-gag" provision. This clause overrides any conflicting department or other supervisory restrictions on activity protected by the Policy. There cannot be any subordinate discretionary authority to cancel the Policy’s protection.