Ethical Justice. Chapter Fifteen: Whistleblowers . Whistleblowers .
Chapter Fifteen: Whistleblowers
Whistleblower is a generic term used to describe someone that reports misconduct within their own agency or institution; or, as described in Miethe (1999; p.11): “an employee or former employee who reports misconduct to persons who have power to take action”.
This includes reporting breaches of administrative policy, professional ethics, professional responsibilities, and also violations of the law.
Many CJ professions have an explicit obligation to report any misconduct they have direct knowledge of. These obligations may be a function of professional ethics, agency policy, or the law.
In some CJ professions, failure to report may be considered a form of professional misconduct or dereliction of duty.
For an ethical CJ practitioner, the obligation to report misconduct exists whether there is a specific mandate or not. However, the personal, financial and professional repercussions for reporting misconduct are not generally favorable to the reporter.
The majority of CJ practitioners sign employment contracts. These contracts likely contain confidentiality agreements, and non-disclosure clauses, that preclude communication of any kind about active casework, internal matters, or employee activities. Restrictions may also be places on the dissemination of information that reflects negatively on the employer.
The Unites State Supreme Court holds that (Garcetti, et al. v. Ceballos, 2006):
“When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Therefore, government employees who are in a position to have direct knowledge of, and an applied understanding, of misconduct do not always have freedom of speech. They are contractually bound to report such violations strictly within their chain of command and are also contractually bound to refrain from speech that harms the image or effectiveness of their agency.
OSHA - United States Department of Labor’s Department of Occupational and Safety and Health Administration
OSHA maintains a Whistleblower Protection Program that enforces provisions of more than twenty whistleblower statutes protecting employees who report violations.
Rights afforded by these acts include: worker participating in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.
Government Funded Research
All institutions receiving research funds from Public Health Service agencies must have on file an assurance form with the Office of Research Integrity ensuring that the institution has in place policies and procedures for dealing with allegations of misconduct.
Paul Coverdell Forensic Science Improvement Grant Program
Forensic examiners working for crime labs or law enforcement agencies that receive Federal funding are meant to enjoy immunity from employer retaliation when acting as a whistleblower.
The protections offered at the state and federal levels vary on the precise definition of whistleblower. Each state defines whistleblower differently and affords them different conditions of protection.
Whistleblower Protection Enhancement Act of 2012
Signed into law in 2012, this legislation is intended to reform protections for federal employees seeking to report misconduct, fraud and illegality.
Whistleblower protection is theoretical because agencies and institutions don’t always understand, abide, or enforce required whistleblower protections.
Loyalty is a quality that is highly regarded by many criminal justice employment cultures.
The law enforcement culture in particular is defined by the requirements of utter loyalty to not only an agency, but to fellow officers – referred to as “the code of silence”.
Repercussions of blowing the whistle include social ostracism by coworkers as well as retaliation from management in the form of blacklisting, demotion, and sometimes dismissal.
According to Dehaven-Smith (2011), retaliation against whistleblowers tends to have the following characteristics:
It often originates at the very highest levels of government;
Officials are often willing to commit felonies in an effort to retaliate against whistleblowers;
Retaliation is sometimes designed to place people’s lives at risk;
Retaliation is usually devastating for the victims; and
When retaliation has been exposed, the laws protecting whistleblowers are not strengthened, nor are the retaliators usually punished.
Reforms must take place in criminal justice leadership and culture.
This means the hiring and retention of ethical employees, and the sanction or expulsion of anyone contrary.
Laws would not have the desired effect because they are incapable of changing fundamental professional character.
The authors’ provide the following advice when dealing with whistle blowing challenges:
Read your employment contract
Read your agency/institutional policies and procedures
Read your state laws
Read your federal laws
Find a trusted mentor and seek advice
Document everything related to your concerns in order to back up your complaint
Put your complaint in writing
CC the Complaint to multiple supervisors to create transparency and accountability
Involve unions when necessary
Determine who has oversight
Take it up a level
Hire a lawyer before taking legal action
Consider contacting a local politician
Consider contacting the media as a last resort
Consider civil litigation