Whistleblowing: Time To Walk the Talk

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Richard Jacobs
March 6, 2015            

The ASPA Code of Ethics (2013) requires public administrators to develop ethical public service organizations. For some, doing so might not seem very demanding. After all, “talking the talk” doesn’t require much of an investment.

But what happens when a public administrator directs a subordinate to engage in potentially illegal conduct? Then, when the subordinate confronts the leader, tells the subordinate to comply? In turn, the subordinate reports this up the chain of command and is subsequently reassigned?

What does “walking the talk” require of that public administrator?

The case

On Feb. 6, 2012, the Chief of the Department of Justice (DOJ) Employee Assistance Program (EAP) for the U.S. Marshals Service (USMS), John Anderson, received an email from his supervisor directing Anderson to submit weekly reports similar in nature to a form that had been used for years.

The dilemma pitted complying with the directive against what the Privacy Act and the Health Insurance Portability and Accountability Act of 1996 (HIPPA) require of EAP personnel. While the supervisor wanted “to maintain as much confidentiality as possible when dealing with smaller districts,” the directive potentially violated the law because almost everyone attending the weekly staff meeting would likely be able to identify the employees seeking EAP assistance. In turn, that information could be used toward potentially deleterious ends.

In an email, Anderson recommend to his supervisor that he “cease all communication regarding client issues until clear guidance has come out with approval from [Office of General Counsel] regarding what and how [staff members] can communicate client data….To be clear the legal right to communicate a person’s personal information can only be given by the person themselves.” Anderson also informed his supervisor that he made his concerns known “to everyone in the chain of command over the last year,” including EAP, Internal Affairs, Office of Special Counsel and U.S. Senate’s Government Oversight Committee. Lastly, Anderson informed his supervisor that in using the required form, DOJ had potentially committed at least 130 violations since August 2010.

The fallout

DOJ reassigned Anderson to the role of program manager, for which he had no training. Believing his reassignment was retaliation, Anderson filed a request for a hearing before an administrative judge.

However, there was no hearing as the judge dismissed Anderson’s appeal due to lack of jurisdiction. Anderson had fulfilled most of the requirements, but the judge ruled that Anderson failed to allege nonfrivolously that he made a “protected disclosure” which was a contributing factor in the DOJ’s decision to take a personnel action.

Anderson appealed to the U.S. Merit Systems Protection Board (MSPB), arguing he had met that burden.

MSPB ruled that Anderson had indeed raised a nonfrivolous allegation that a person in his position “without any special expertise in legal matters” could reasonably conclude in violation of a law, rule or regulation. Thus, Anderson’s disclosures up the chain of command were protected.

Upholding the appeal, MSPB remanded the case back to the regional office where it continues to be adjudicated.

Promoting the development of ethical public service agencies

Chaeleff argues in “The Courageous Follower” that followership requires subordinates who stand up for and to their leaders. Chaeleff adds that a leader is appreciative of both, even if the latter provokes discomfort.

Yet, a 2010 MSPB survey indicates that fear of retaliation explains why nearly 30 percent of federal employees do not report misconduct.

The presence of fear in this DOJ agency’s culture is something Anderson’s supervisor must address if, as an ethical public administrator, he is to promote the development of an ethical public service agency.

To that end, the ASPA Code’s Practices for Principle 7 direct that supervisor—and indeed, any public administrator—to “walk the talk” by:

• Encouraging open expression of views by staff members within the organization and providing administrative channels for dissent.
• Protecting the whistleblowing rights of public employees.
• Providing assurance of due process and safeguards against reprisal.
• Giving support to colleagues who are victims of retribution. 

An assessment 

As the practices associated with ASPA Code’s Principle 7 require, John Anderson sought “to correct instances of wrongdoing or report them to superiors.” When remedies were not “assured by reporting wrongdoing internally,” Anderson sought “external sources or agencies for review and action.”

Anderson’s whistleblowing was both proper and courageous. As discomforting as Anderson’s refusal to comply and his disclosure up the chain of command may have been for Anderson’s supervisor, it was a direct challenge to the supervisor’s credibility as an ethical leader.

If that nearly 30 percent of federal employees who reported fear of retribution stood up to their leaders—meaning that 100 percent of federal employees would be courageous, like John Anderson—the incidence of reported misconduct in public service agencies across the nation would decline.

But, not due to fear.

Instead, leaders and followers would hold one another mutually accountable for engaging in ethical conduct, making whistleblowing and protections for whistleblowers unnecessary.

Sadly, research suggests this not the case.

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Author: Richard M. Jacobs is a professor of public administration at Villanova University, where he teaches organization theory and leadership ethics in the MPA program. Jacobs can be reached at: [email protected].

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