“All that is needed for evil to prosper is for people of good will to do nothing”—Edmund Burke The

Whistle No. 62, April 2010

Newsletter of Whistleblowers

Bradley Birkenfeld, taxation whistleblower (see pages 9–11) Photo: http://www.whistleblowers.org

Media watch

Burma “executing Praise for plan but showing when decisions will be made and what will happen.” whistle-blowers” “states must be brought Senator Ludwig said last night that, BBC News, 7 January 2010 in line” for it to work for some matters, a delay of one week Chris Merritt before a whistleblower could approach TWO Burmese officials have been The Australian, 18 March 2010, p. 2 the media “might be too long.” sentenced to death for leaking details “You have to use a term like of secret government visits to North THE federal government’s plan for a ‘reasonable’ to make sure that it is fair Korea and Russia, the BBC has powerful new law to protect public to all parties,” Senator Ludwig told learned. service whistleblowers has triggered The Australian. The officials were also found guilty calls for the states to match the of leaking information about military commonwealth’s approach. tunnels allegedly built in Burma by Whistleblowers Australia president North Korea, a source in Burma said. Peter Bennett said: “What we need A third person was jailed for 15 years, now is one national whistleblower law the source added. … This is an enormous move in the The military rulers in Burma right direction.” (Myanmar) have so far made no public Mr Bennett’s praise for the scheme comments on the case. is in line with the view of legal The source told BBC Burmese that academic A.J. Brown, who said Win Naing Kyaw, a former army Special Minister of State and cabinet major, and Thura Kyaw, a clerk at the secretary Joe Ludwig’s plan was European desk of Burma's foreign comprehensive. ministry, had been sentenced to death It built on work done by a House of by a court in Rangoon on Thursday. Representatives committee chaired by They were found guilty of leaking Joe Ludwig Labor backbencher Mark Dreyfus and information about government visits to had retained the best elements of the North Korea and Russia, which report- Dr Brown, who led a national research Dreyfus scheme. project on whistleblower reform, said edly took place in 2008 and 2006. But Dr Brown and Mr Bennett both he did not believe the term “reason- pointed to the lack of detail in the able” was a flaw. scheme outlined to parliament, con- He believed the scheme was much cerning the penalties that will be better than the Dreyfus committee’s imposed on those who seek to victim- proposal on limited protection for ise whistleblowers or prevent public disclosures to the media. interest disclosures. “I think this can work, but they will “The government deserves praise, need to resource it,” Dr Brown said. but this is a major issue,” Mr Bennett “The government could be on track said. to introduce something approaching “It is simply not good enough to set world’s best practice.” out the procedures you can use to Mr Dreyfus said it was pleasing to disclose information without also see that the government had accepted, setting out clearly the action that can in whole or in part, 22 of his commit- Win Naing Kyaw be taken against people who victimise tee’s 26 recommendations. whistleblowers or attempt to stop The two men were also convicted of disclosures.” leaking details of a network of tunnels Mr Bennett was also concerned reportedly being built in Burma. It is that some disclosures to the media Whistleblower says thought the tunnels were built to house would only be protected if they had communications systems, possible watchdog failed her been ignored by the public sector Des Houghton weapons factories and troops in the complaint-handling system for a event of an invasion. The third man, The Courier-Mail, “reasonable” period. 5 December 2009, p. 74 Pyan Sein, was given 15 years in “I think one week is reasonable,” prison on Thursday. Mr Bennett said. A BUNDABERG nurse has called for Burma still has capital punishment, “The legislation should then re- but it has not carried out executions in a royal commission into the Crime and quire an agency to come back to a Misconduct Commission for failing to recent years. whistleblower outlining a timeline investigate serious incidents including an assault on a baby, falsifying of

2 The Whistle, #62, April 2010 records, bullying, and medical neglect At the time the AMA Queensland “It is my belief that I have been that resulted in a patient dying on a president Dr Chris Davis prophetically treated unfairly from start to finish, trolley at the hospital. questioned Ayre’s role. with extreme bias being directed The whistleblower, Christine “Queensland Health is essentially against me by hospital management Cameron, broke her silence yesterday, investigating itself,” Davis warned. and the ESU investigation itself. saying the CMC was amateurish and He cited a “culture of concealment” “It is my firm belief that the ESU inept and had failed in its duty by identified by Geoff Davies, QC, in his has sought from start to finish to help flick-passing her complaints to other investigations into the Bundaberg cover up the errors and failings of agencies for investigation. tragedy. hospital management, as well as These investigations led to “fabri- Cameron said she presented written possible untrue responses, and I will be cations” and a “whitewash,” she said proof that records had been falsified. seeking all possible investigation into in statements tabled in Parliament. “Yet the ESU said the claims were all these matters.” unsubstantiated,” she said. “I’m dumb- Cameron said she acted only in the founded. How could they get away interests of patients whom she believed with it? were getting inferior treatment. “We are asked to report incidents There had been marked improve- but I quickly realised the official ments in the emergency department at policy is to cover things up. I was told Bundaberg since Ayre’s report, she the expense required to determine said. whether medical practitioners are providing appropriate care would be an unjustifiable use of resources. Whistleblowers told: Christine Cameron “This is very frightening, espe- Picture: Paul Beutel, The Sunday Mail cially given the fact that they are “You will bring us down” investigating issues surrounding the The men who raised concerns about Cameron, 48, said she was dumb- Bundaberg Base Hospital. Jetstar Pacific feel vindicated by an founded to discover most of the “It’s wrong, wrong, wrong.” inquiry into the , write Tom complaints she listed in official Cameron’s allegations are Allard and Matt O’Sullivan. incident reports weren’t investigated at contained in statements tabled in the Sydney Morning Herald all. House by Rob Messenger (LNP, 15 January 2010 But more perplexing was how the Burnett). Messenger backed Cameron’s call “bureaucracy” managed to shuffle her DIGGER KING knew his colleagues complaints from one agency to another for a royal commission, saying the were unhappy when he joined his until no one seemed to know who was investigations lacked integrity. fellow Jetstar Pacific engineer Bernard investigating what. “At the very least, this is unethical McCune in taking their concerns about She sensed this was a deliberate behaviour. At worst, this is corruption safety at the carrier to Vietnam’s tactic to delay investigations until the and cronyism in the Labor Party,” he aviation regulator. media had lost interest. said. But he did not expect the loud “When I rang the CMC in January, The CMC didn’t take the matter knock on his front door late one night they told me the case was now in the seriously because it was “under- in November. hands of Steve Hardy, the director of resourced, undermanned,” he said. “This guy came around to my place the (Queensland Health) Ethical Messenger said Cameron may have on a motorcycle and rammed it into Standards Unit,” she said. been deliberately misled into believing my door. He then started to kick it “Then I was told by the Ethical the Ethical Standards Unit was investi- down.” Standards Unit it wasn’t really an ESU gating the matter when it wasn’t. The man, says Mr King, was David matter at all and that the complaints Cameron said: “This bungled Andrew, his former housemate and the had been referred back to district investigation is a clear indication of maintenance manager at Jetstar health manager Kevin Hegarty. how unreliable the process is when the Pacific, in which has a 27 per “Later Kevin told me he had CMC delegates investigations to cent shareholding. complete oversight of the investi- government departments — especially A police report of the incident gation. when it means that a government formed part of a Civil Aviation “I understood the CMC still had department has the opportunity to Authority of Vietnam (CAAV) inves- oversight of the case but they said, no, investigate itself. tigation into Jetstar Pacific, which the case was no longer with them.” “It is my contention that the ESU ordered Mr Andrew be removed from Meanwhile, some matters were investigation was staged and corrupt. his post, an edict the airline adhered to. referred to the Health Quality and “It is also my belief that now, “There was a lot of hatred there for Complaints Commission and a review realising that they may be exposed, me,” said Mr King, a 65-year-old of the hospital’s emergency depart- management and investigators at all veteran of the airline industry. “People ment was done by Prince Charles levels are doing their best to distance were telling me, ‘You are going to Hospital’s executive director of themselves from this abortion of a bring us down. This place will go out medical services, Dr Stephen Ayre. report. of business.’ I told them if they did

The Whistle, #62, April 2010 3 something when we first complained Jetstar accused Mr King of leaking She believes that if she had not about it, it never would have come to the photos. He was suspended two intervened, the patient may have died. this.” days later on the grounds of making Instead of investigating her con- repeated mistakes, a rationale the cerns and treating her disclosure as CAAV found to be unsubstantiated. confidential under whistle-blowing Local maintenance staff at Jetstar legislation, Dr Dawson said managers petitioned for Mr McCune’s reinstate- took no statements about the matter ment, saying “he was the foreigner and informed the doctor whose they hated most” when he started at the treatment was in question that it was airline in 2006 but they soon came to she who had complained. regard him as a “good teacher and About four weeks later the doctor good friend.” was made Dr Dawson’s line manager. While the CAAV backed the When she took the matter to an whistleblowers, Bruce Buchanan, the Employment Tribunal earlier this year, chief executive of Jetstar, said yester- the Gwent NHS Healthcare Trust day there would be no apology nor offered her a £90,000 pay-off includ- reinstatement for the men. ing a confidentiality clause, which she Mr Buchanan said the CAAV refused. She is now working in another report had been blown out of propor- hospital. tion and he insisted he would have Dr Dawson said: “I would like the grounded the airline if he had had Aneurin Bevan Health Board to make concerns about its safety. “This airline a public statement that gagging clauses is performing well and from a safety will not be used in future and that perspective it is making giant strides whistle-blowers will be protected.” … The safety performance has Her local MP David Davies said: “I “Hated“ … Bernard McCune, left, and Digger King, who upset his colleagues improved 100-fold since we got in it,” am amazed at the way Dr Dawson has when he raised concerns about Jetstar he said. been treated. Pacific. Photo: Wakako Iguchi Mr McCune denied Mr Buchanan’s “Doctors and others working in the claims. health service who raise concerns Mr King and Mr McCune spoke He said he had never applied for a about the treatment of patients deserve yesterday of blowing the whistle on promotion at Jetstar Pacific and that to have the issues they raise properly what the CAAV found in a report both men had presented written and investigated. released this week to be a “very poor verbal reports on the safety flaws at the “I think it is disgraceful that the and ineffective” culture of safety airline, including a lengthy email — NHS sought to make her sign a maintenance at Jetstar Pacific. viewed by — to a senior gagging order. Mr McCune, who was found by the Qantas manager based in Australia. “It is in the public interest that Vietnamese authorities to have been there should be full transparency about illegally sacked after he refused to sign matters of this kind. The only reason a resignation letter drafted for him, Doctor was offered for getting a doctor to sign a gagging said he first raised the safety issues in order is to prevent details of the early 2008. £90,000 pay-off serious concerns they have raised “The reason we went to the CAAV to keep her quiet entering the public domain. is because senior managers weren’t Martin Shipton “The fact that the NHS Trust was responding to the safety concerns. Western Mail, 17 December 2009 prepared to pay her £90,000 if she There was an intense investigation and gave an undertaking to keep quiet speaks for itself.” we have been found to be correct.” A DOCTOR who raised concerns about As well as finding that the airline the competence of colleagues was An Assembly Government spokes- had committed a number of safety offered a £90,000 pay-off if she agreed man said: “We expect NHS organisa- violations, the CAAV report also to a “gagging” clause in settlement of tions to have a culture of openness, accused Jetstar of covering up defects. an employment tribunal claim. which encourages staff to raise On Wednesday night, a day after Last night an MP said it was concerns to senior management. the report’s release, both men said they disgraceful that NHS officials had tried “The Public Interest Disclosure Act felt vindicated. All they had wanted, to silence her instead of investigating gives significant statutory protection to said Mr McCune, was to “fix the her concerns properly. employees who disclose information safety problems and clear our names.” Dr Lucy Dawson, who worked at reasonably and responsibly in the Mr McCune has become a minor Nevill Hall Hospital in Abergavenny public interest and are victimised as a media fixture in the country. Photos he as an associate specialist in accident result. obtained of a damaged plane laden and emergency, raised a serious “In relation to the Assembly Gov- with passengers ready to depart were clinical concern about the management ernment’s policy on whistle-blowing, splashed across the country’s print and of a seriously injured young patient by it states that the identity of a whistle- online media last year. a medical colleague. blower will be kept confidential for as

4 The Whistle, #62, April 2010 long as he or she wishes and as long as removed from their workplace, despite Glencross, 58, represented himself the matter remains under the Assembly repeated promises to protect them. during the hearing. “I had to learn to Government’s control. The only ex- The information was collated by take on lawyers, it was a very daunting ception to this is where revealing the the charity Public Concern at Work in experience. I liked my job, but I whistle-blower’s identity to the police a report into 10 years of whistleblower couldn’t lie,” he told the BBC. is necessary for the proper investiga- protection. Catherine Wolthuizen, its Network Rail said they were disap- tion of a suspected criminal offence. director, said that the figures showed a pointed by the decision and were “The Assembly Government has a persistent refusal by many employers considering their position. policy of not using confidentiality to accept that staff had the right to Nearly a third of calls to a helpline clauses as a matter of good public expose wrongdoing. set up by Public Concern At Work sector practice in any document “Each claim is evidence of a break- have been from the health and social relating to termination of employment down in relations between employer work sector. The charity has been or a departure agreement. and employee … our report suggests made aware that outlawed gagging “This follows guidance in HM British employees are not being told clauses are still being used by the NHS Treasury’s Handbook Propriety and that it is safe and acceptable to speak to silence concerns about patients’ Regularity, published in June 1997, up about wrongdoing in their work- safety. and recommendations in Assembly place,” she said. Audit Committee reports in 2000 and The Public Interest Disclosure Act 2003.” came into force in 1999 with the A spokesman for the Aneurin specific aim of protecting whistle- Bevan Health Board, which took over blowers. It covers disclosures that the responsibilities of the Gwent expose wrongdoing including dangers Healthcare NHS Trust in October, to health and safety, breach of legal said: “There are a number of issues in obligations or attempts to cover them this case that were the subject of a up. formal investigation carried out by the The act was supposed to protect Nurse Margaret Haywood blew the former trust and it would be inappro- those who raise wrongdoing inside an whistle on shocking care of elderly priate to add any further comment. organisation, and offers limited patients in Sussex by filming under- “The Aneurin Bevan Health Board protection to those who raise problems cover. She was struck off, but the high has a policy of not using confidential- through the media. court reinstated her last month. ity agreements in respect of settle- Figures show a year on year in- Photograph: Christopher Thomond ments reached which is in line with crease in the number of people taking Assembly Government guidance.” cases to employment tribunals under Peter Bousfield, a senior consultant the act. The charity’s report, to be who raised fears about patient safety at the Liverpool Women’s NHS trust, released on Wednesday, will disclose that most cases are settled before they was given early retirement and a pay- Tenfold rise in get to tribunal. Those that are success- off. A confidentiality clause prevented whistleblower cases fully taken forward result in an average him raising concerns with anyone other than the hospital board and the taken to tribunal payout of £113,667, with the biggest amount being £3.8m. secretary of state for health. Campaigners fear workers High-profile cases include Tom Another doctor who raised con- deliberately undermined despite Lake, a police whistleblower sacked cerns about the competence of repeated promises to protect them after accusing colleagues of keeping a colleagues was offered a £90,000 pay- Rajeev Syal piece of human skull as a souvenir. He off if she agreed to a gagging clause in The Guardian, 22 March 2010, p. 14 was awarded £400,000 after a court settlement of an employment tribunal

heard that he had reported a colleague claim. THE number of employees claiming to for keeping the grisly keepsake from a Dr Lucy Dawson, who worked at have been sacked, mistreated or bullied fatal rail accident but was then fired Nevill Hall hospital in Abergavenny as for exposing corrupt practices at work for “grassing” on a fellow officer. He an associate specialist in accident and has increased tenfold over the last eventually won a three-year legal emergency, raised a serious clinical decade, according to official figures. battle for unfair dismissal. concern about the management of a Employment tribunal statistics Jim Glencross, a railway worker seriously injured young patient by a show that the total number of people from Carlisle, was awarded £200,000 medical colleague. She said that if she using whistleblowing legislation, after a tribunal found that he had been had not intervened, the patient might which aims to protect workers from unfairly dismissed for exposing poor have died. victimisation if they have exposed equipment which had injured a Instead of investigating her con- wrongdoing, increased from 157 cases colleague. The court heard that he had cerns and treating her disclosure as in 1999 to 1,791 10 years later. been asked to lie by managers after confidential under whistleblowing The figures, compiled for the first witnessing an accident. When he legislation, Dawson said managers time, will increase fears among refused to do so, he was sacked. took no statements about the matter campaigners that whistleblowers are and informed the doctor whose treat- being deliberately undermined or

The Whistle, #62, April 2010 5 ment was in question that it was she “This individual should not have who had complained. About four been missed,” fumed Maine Senator weeks later the doctor was made Susan Collins, ranking member of the Dawson’s line manager. Senate homeland security committee, When she took the matter to an in a classic example of understatement. employment tribunal last year, the But the harsh punishment meted Gwent NHS healthcare trust offered out to whistleblowers has had its her a £90,000 pay-off including a predictably chilling effect. “Who’s confidentiality clause, which she going to speak out if you have a 2 refused. She is now working in another percent chance of success and your hospital. career will be trashed?” Hanley asked. Last April, there was widespread The few brave souls who lost public outrage after Margaret everything to warn Americans of the Haywood, a nurse who filmed under- ever-present danger in the skies have cover to expose shocking care of Six years later, there was still no been kicked to the curb, while those elderly patients in Sussex, was struck federal air marshal aboard Northwest who failed to perform the Department off for breaching patient confidential- Flight 253 from Amsterdam to Detroit, of Homeland Security’s core mission ity, even though no patient or relative even though both cities are well- — led by Secretary Janet Napolitano complained. She was reinstated by the known hotbeds of radical Islamic and her claim that “the system high court last month. activity. worked” in the Detroit incident — Robert MacLean, hand-picked as continue to collect their government one of the first federal air marshals, paychecks, aided and abetted by an was fired for publicly criticizing the irresponsible Congress. Whistleblowers punished Transportation Security Administra- As Robert Spencer, author of The for warning of tion’s plan to remove marshals from Politically Incorrect Guide to Islam, aviation security lapses nonstop, long-distance flights — in told The Examiner: “In reality, nothing violation of the Aviation and Trans- worked. … All the stupid and humili- Barbara Hollingsworth portation Security Act of 2001 — ating airport security procedures, all Washington Examiner because the agency didn’t want to pay the little Baggies for toothpaste and 29 December 2009 their hotel bills. shampoo, all the padding through the

Former FAA inspector Gabe Bruno security scanner in stocking feet didn’t THEY’VE been frantically trying to uncovered evidence that an airline work.” warn America for the past six years: mechanic certification school was The dirty and dangerous secret aviation security is a joke, and it’s only being run by a criminal syndicate. He’s about airline security is that it’s all just a matter of time before terrorists still trying to get somebody — political theater designed to calm destroy another airplane full of anybody — in the federal government passengers’ very real fears. If the innocent passengers. to find out where all the bogus system allows a young, radicalized The close call in Detroit on mechanics are currently employed. Islamist known to U.S. authorities to Christmas Day has vindicated a group Fellow FAA whistleblower Rich board a plane with 80 grams of of highly experienced experts — Wyeroski was canned for asking too pentaerythritol tetranitrate sewn into including former airline pilots, federal many questions — and pointing out his pants, nobody is safe. air marshals and Federal Aviation the lunacy of forcing passengers to Meanwhile, your government is too Administration inspectors — who were take off their shoes when the airplanes busy bailing out failed banks and car fired or demoted for pointing out they board are serviced offshore in companies and taking over the health obvious flaws in the nation’s post-9/11 completely unsecured facilities. care industry to provide for the aviation security system to their chain Former TSA Red Team Leader common defense. Just don’t say you of command. Bogdan Dzakovic, one of the world’s weren’t warned. Even now, facing financial ruin top experts on aviation security, was after their careers were trashed and demoted to human answering machine their families destroyed, courageous after he testified at the 9/11 Commis- members of the Whistleblowing sion’s second hearing that safety issues Whistle-blowing nurse Airline Employees Association refuse were still not being addressed. is acquitted in Texas to be silenced. Former United B-777 The U.S. government’s No. 1 job is Kevin Sack Captain Dan Hanley was forced out of to protect American citizens, but it New York Times, 12 February 2010 the cockpit after filing federally didn’t stop Umar Farouk Abdulmutal- mandated complaints in 2003 about the lab, a 23-year-old Nigerian who was A WEST TEXAS jury took but an hour lack of federal air marshals and already on the terrorist watch list, from Thursday to acquit a nurse who had onboard cabin cameras aboard his buying a ticket — in cash — directly been charged with a felony after high-risk London-to-New York flights. above the aircraft’s fuel tank, or from alerting the state medical board that a

boarding the Detroit-bound flight with doctor at her hospital was practicing explosives sewn into his underwear. unsafe medicine.

6 The Whistle, #62, April 2010 The uncommon prosecution had The jury foreman said the panel of Mr. Cook presented broad evidence ignited deep concern among health six men and six women voted that the nurses’ concerns about Dr. care workers and advocates for unanimously on the first ballot, and Arafiles, 47, were well founded, and whistle-blowers about a potential questioned why Mrs. Mitchell had ever that Mrs. Mitchell had violated no laws chilling effect on the reporting of been arrested. or regulations in alerting the govern- malpractice. “We just didn’t see the wrongdoing mental body that licenses and regulates But after a four-day trial in of sending the file numbers in, since physicians. He walked the jury through Andrews, Texas, a state court jury she’s a nurse,” said the foreman, a series of questionable cases involv- quickly found that the nurse, Anne Harley D. Tyler, a high school cus- ing Dr. Arafiles, including one in Mitchell, was not guilty of the third- todian. which the doctor performed a skin degree felony charge of “misuse of Mrs. Mitchell, who did not testify graft in the hospital’s emergency room, official information.” Conviction could in her defense, said after the verdict despite not having surgical privileges, have carried a prison sentence of up to that she had been trying only to protect and another where he sutured a rubber 10 years and a fine of up to $10,000. her patients. tip to a patient’s crushed finger for “It’s a duty to every nurse to take protection. care of patients,” she said, after wiping Some watchdog groups worried away tears of relief. that the prosecution would stifle The prosecution has so polarized reporting of improper medical care, the small town of Kermit, where the regardless of the outcome. But hospital is located, that the judge Rebecca M. Patton, president of the moved the trial to a neighboring American Nurses Association, called county. The case was investigated by the verdict “a resounding win on Sheriff Robert L. Roberts Jr., a friend behalf of patient safety.” and admiring patient of Dr. Arafiles, Ms. Patton said, “The message the and tried by the county attorney, Scott jury sent is clear: the freedom for M. Tidwell, a political ally of the nurses to report a physician’s unsafe sheriff and, according to testimony, Dr. medical practices is non-negotiable.” Arafiles’s personal lawyer. Sheriff Roberts said he was Jim Mustian contributed reporting from disappointed in the verdict but did not Andrews, Texas. regret the prosecution. “The defense had to spin this as a reporting issue, that nurses were not Moving from bystander to going to be able to report bad medical care, and it’s never been that,” he said. witness to whistle-blower Anne Mitchell “We encourage people to report bad Marc Gerstein with Michael Ellsberg medical care. But I encourage public The prosecution said Mrs. Mitchell, servants to report it properly.” An extract from their book Flirting 52, who had been a nurse at Winkler Mrs. Mitchell and Vickilyn Galle, a with disaster: why accidents are rarely County Memorial Hospital for 25 co-worker who helped her write the accidental (New York: Union Square years, had used her position to obtain anonymous letter to the medical board, Press, 2008), pp. 266–269 and disseminate confidential informa- were fired by the hospital last June, tion — patient file numbers — in her shortly before being indicted. The One of the most important pieces of letter to the medical board with the charges against Mrs. Galle, 54, were advice in this book is not to be a intent of harming Dr. Rolando G. dismissed late last month at the bystander. Often unsafe situations Arafiles Jr. The prosecutor argued that prosecutor’s discretion. (such as Challenger’s O-rings or BP’s state law required that reports of After the verdict, the nurses’ Texas City refinery) or unethical acts misconduct be made in good faith, and lawyers pivoted quickly to the lawsuit (such as Enron’s shamelessly that Mrs. Mitchell had been waging a they have filed in federal court against misleading financial reporting) persist vendetta against Dr. Arafiles since his the county, the hospital and various because people look away or in other arrival at the hospital in April 2008. officials, charging that the firings and ways make it clear that others’ danger- Witnesses testified that they had indictments amounted to a violation of producing or immoral actions are none heard Mrs. Mitchell refer to Dr. due process and their First Amendment of their business. In one’s role as a Arafiles, a proponent of alternative rights. community or organizational member, medicine and herbal remedies, as a “We are glad that this phase of this reducing risk and achieving moral “witch doctor.” ordeal has ended and that Anne has course corrections often takes very But other nurses vouched that Mrs. been restored to her liberty,” said Mrs. little effort. Mitchell’s concerns were legitimate, Mitchell’s lawyer, John H. Cook IV, Psychologist Petruska Clarkson and that internal complaints were not “but there was great damage done in used to tell a story that makes the point dealt with adequately by the hospital’s this case, and this does not make them in the day-to-day context. A woman administration. whole.” observed two policemen harassing a

The Whistle, #62, April 2010 7 member of an ethnic minority. Rather of the examples in this book. tions tend to be people with strong and than intervene directly, the woman unwavering principles. At work, their made herself a “conspicuous colleagues are likely to consider them observer,” carefully watching the picky about the facts and not prone to unfolding events from a safe distance. convenient memory lapses. Potential Realizing they were being observed, whistle-blowers often face up to their the policemen became less aggressive responsibilities with deep ambivalence, and more respectful of the man they caught between the need to do the right were questioning, eventually letting thing so that they can live with him go. The policemen then went their themselves and the certain knowledge way and the observer hers. that they will be persecuted. Many Sometimes just “active watching,” whistle-blowers in celebrated cases visibly taking notes or writing a become pariahs in their organizations, concerned e-mail, is enough to change forced to transition to new careers as the course of a situation. I am not ethical advocates. If they are heroes, advocating recklessness. I am, they are usually reluctant ones. however, suggesting that being visible The key to successful whistle- and questioning clearly inappropriate blowing is documentation. Unsubstan- actions rather than fading into the tiated accusations are easily deflected, background often makes a difference, even if they are true. Unfortunately, Marc Gerstein, even if it is not a decisive action. author of Flirting with Disaster that means many potential whistle- Equally important, when someone else blowers are stymied by both corporate takes a stand-up action, lending visible If the work situation is more benign — and government rules that categorize support matters a great deal. While and many are — the key to taking many documents as proprietary or each single person may be relatively action is finding allies. Many organi- classified. This may make their impotent, two or more in mutual zations have formal groups such as external disclosure either a contractual support quickly break the spell that the safety officers, human resource violation or illegal. Expert legal advice wrongdoers can operate outside the specialists, and union representatives is essential. (See our Web site, boundaries of ethics and prudence. to whom one can turn for advice and www.flirtingwithdisaster.net, for Doing something is always better than assistance. If two or more people go resources.) doing nothing, and once you let go of together when voicing their concerns, In light of the likely consequences, the grandiose notion that your actions it strengthens the argument manyfold. despite the moral imperatives, I do not must definitively resolve the problem, Assuming that the organization is advocate anyone casually becoming a or the equally erroneous idea that merely blind to its risks rather than whistle-blower. It is an act of con- apparently minor actions have no deliberately hiding them, opening the science, a personal and family decision beneficial impact, you have a greater door will usually be enough (although involving considerable sacrifice quite number of choices about how to you should be prepared to furnish separate from benefits to others. On behave. some documented proof of your the other hand, I do not condone One other benefit from becoming concerns). colluding with any cover-up that may engaged in life’s dramas involving On the other hand, an overly follow the revelations that may come ethics and risk is that it is likely to defensive organization engaged in a to light by other means. Despite the make you feel better. Silently collud- cover-up will usually block or subvert fact that “There are careers at stake,” ing with wrongdoing or risk-making is the channels of complaint. In such as one NASA manager said in the debilitating to the psyche, while taking cases, simply standing by may do wake of the Challenger disaster, even action activates the sense of heroism in little, even if multiple people get passively contributing to a cover-up is each of us while encouraging other involved. Unfortunately, the transition an immoral second offense, as observers’ sense of the legitimacy of from simply standing by to organized tempting as it may be to hope that the an oppositional stand. resistance and whistle-blowing is a big storm will blow over without blowing At work, of course, the situation is one, and not to be taken lightly. you down with it. always complicated. If a supervisor Research reveals that whistle-blowers Before the story breaks, cautious directs one of his employees to engage in hostile organizations encounter legal advisers suggest making one’s in an unsafe practice or to falsify or severe resistance. They are often protests within the chain of command destroy records in order to meet a subjected to harassment and punish- or other legitimate avenues, but then production goal or cover up a misdeed, ment, sometimes becoming the object departing the organization on as good taking any visible action invites the of a counterclaim if they don’t back terms as possible if one’s complaints threat of management retaliation or down. Most steadfast whistle-blowers come to naught. In comparison with peer-group ostracism if one’s co- lose their jobs or privileges, and many remaining as a silent co-conspirator workers are complicit in the wrong- require legal counsel. So why do they once you know the truth, or running doing. The key question is whether the do it? the risks of being a whistle-blower, boss is acting on his own or is part of a According to research, committed that is sound advice. larger pattern, as was the case in most whistle-blowers in hostile organiza- Unfortunately, most people choose

8 The Whistle, #62, April 2010 silence, for departure has its own costs. received nothing. The government their jobs in the meantime, costing In most cases, it seems safer to just does not simply hand out checks after themselves and their families millions keep a low profile. The question is, whistleblowers report fraud. The of dollars in lost income and benefits. “Safer for whom?” process is long, technical and often How much will Birkenfeld actually very disappointing, especially to the obtain as a result of his whistleblow- whistleblowers whose careers have ing? Any answer is completely specu- been ruined. lative. Given the unprecedented nature Whistleblowing: a get- Furthermore, in Birkenfeld’s case, of his disclosures, and the lack of rich-quick scheme? the Department of Justice refused to judicial or administrative precedent Stephen M. Kohn provide him with any whistleblower under the new IRS law, any attempt to Forbes.com, 21 December 2009 protections, let alone immunity in light place a monetary value on his whistle- of his substantial and crucial contribu- blowing is pure guesswork. The IRS IN RECENT days, numerous credible tions to the case against UBS. Instead, must initially review the claim, and news media outlets have reported on Birkenfeld was personally attacked by any amount of reward may be subject what the UBS whistleblower, Bradley the DOJ and indicted for his role in to judicial review. Birkenfeld, may make as a result of helping one client, Igor Olenicoff, This speculation actually serves to turning-in his former employer, the evade taxes. Far from becoming a further harm Birkenfeld. He is facing Zurich, Switzerland-headquartered billionaire, Birkenfeld will commence 40 months in prison; that is the reality. bank, UBS AG. serving a 40-month sentence on Furthermore, no government agency Birkenfeld blew the whistle on the January 8, 2010. He lost his job. He has yet to confirm he is entitled to one bank’s illegal off-shore tax schemes to will soon lose his freedom. What about penny based on his whistleblowing. the United States Department of the new IRS whistleblower-rewards The DOJ refused to provide him with Justice, the Securities and Exchange law? This law contains a reward any whistleblower protections or Commission, the Internal Revenue provision similar to the now famous immunity, despite Birkenfeld’s pleas Service and the Senate many months False Claims Act. Under both laws, since he first communicated with that before he was indicted. The impact of employees are encouraged to disclose agency in early 2007. his disclosures has been unprece- fraud committed by their employers. Lost in the speculation over the dented. UBS has entered a deferred Both laws provide a reward provision theoretical size of Birkenfeld’s reward prosecution agreement with the United that entitles these whistleblowers to a is the fact that when Birkenfeld first States and has paid a $780 million percentage of the monies recovered by blew the whistle at UBS, the law that penalty. More than 14,000 U.S. the United States as a result of their provides for the reward did not yet taxpayers have admitted to holding disclosures. Generally speaking, that is exist. The record demonstrates that undisclosed offshore accounts. 15% to 30%. between June and August of 2005, Based on the extent of the fraud Theoretically, then, whistleblowers Birkenfeld learned that UBS had Birkenfeld exposed, there has been can get rich from these laws. But what entered into agreements with the speculation that he might be entitled to is the reality? Here are the real facts: United States prohibiting many of its a billion dollars or more under a • Between 1987 and 2009, the offshore banking practices, Birkenfeld relatively new IRS law that rewards average False Claims Act reward paid sent multiple e-mails and interoffice whistleblowers for voluntarily provid- to a whistleblower was $1.9 million memoranda to the heads of the UBS ing credible information on large tax dollars. legal and compliance departments frauds (usually above a $2 million • In the 22-year history of the False demanding answers as to how the bank threshold). As one of Birkenfeld’s Claims Act, no reward paid to a single could engage in apparently illegal tax current lawyers, and as a long-time whistleblower has, to my knowledge, evasion schemes. UBS’ legal and advocate for whistleblowers, I believe approached the $100 million mark, compliance mangers refused to answer it is safe to predict that neither regardless of the amount of money any of his concerns. In response to this Birkenfeld nor any other whistleblower obtained by the government. silence, and over concerns that UBS will collect a billion dollars — or • Since 2006, when the tax laws was willfully violating the law, anything approaching that amount — were amended to provide for whistle- Birkenfeld, of his own accord, quit his from the federal government. blower rewards consistent with the job. He felt he had no other choice. What really happens to employees False Claims Act, no whistleblower In early 2006, Birkenfeld filed a who blow the whistle and seek a has obtained any reward from the IRS formal whistleblower complaint in reward? Birkenfeld, like most whistle- under the new legal standards. accordance with three internal UBS blowers, has lost his job and career. He Whistleblower cases are hard. policies. The UBS whistleblower was forced to resign from UBS after Employees who blow the whistle procedures were not designed to his internal protests regarding illegal suffer both professionally and person- reward or compensate employees; bank practices were ignored. His ally. Blowing the whistle is not the instead they were part of a corporate career as an international banker was way to make money quickly in the compliance program designed to cut off — as were his lucrative salary United States. Even the few employees investigate and remedy wrongdoing. and benefits. who have obtained sizable rewards But instead of serving an independent Yes, the law makes Birkenfeld usually had to wait years for a audit function, the UBS program was entitled to a reward. But to date, he has recovery, and almost universally lost controlled by the company’s Group

The Whistle, #62, April 2010 9 General Counsel, Peter Kurer (who whistleblower because he sought investigation that revealed the systemic would later become the chairman of protection under a new federal efforts made by Swiss bank UBS to the board, and subsequently resign whistleblower law. help moneyed Americans hide massive amid the scandal). What’s next? If the United States sums from the IRS. Birkenfeld thought he was properly government is actually serious about The insider information that reporting wrongdoing and giving the encouraging employees to blow the formed the backbone of the investiga- bank an opportunity to investigate and whistle on tax fraud, the Birkenfeld tion — insight that eventually helped fix the problems. He was wrong. UBS’ precedent is simply not the way to the feds recover billions in unpaid compliance program was broken and accomplish those goals. If rewards are taxes — was provided by a former compromised. Instead of fixing the simply pie in the sky, and employees midlevel executive at UBS, American- problems, the compliance program was who uncover massive tax fraud by born Bradley Birkenfeld. Birkenfeld is used to cover up the crimes. The large banks face unending economic the only international banker who has deferred prosecution agreement retaliation, legal battles and potential ever blown the whistle to the US between UBS and the Department of prosecution when they try to report the government on Switzerland’s legen- Justice acknowledged these defects, crimes to their government, what are darily secretive banking practices. He and UBS conceded that had it properly the future prospects for any employee is also the only person connected to investigated Birkenfeld’s allegations, it in the banking industry who tries to UBS’ massive tax evasion scheme to would have uncovered the crimes he stop massive tax fraud against the have been sent to prison: Birkenfeld is later reported to the U.S. government. American people? currently serving a four-year sentence When he blew the whistle inter- Whistleblowing is not a get-rich- for fraud. Whistleblower advocacy nally, Birkenfeld was not seeking a quick scheme. groups warn that this punishment “reward” under the UBS whistleblower could have a “chilling effect,” discour- program — no such reward existed. He aging other financial whistleblowers was trying to fix massive violations from coming forward. Did Obama’s within the company’s procedures. Like Department of Justice (DOJ) exact most whistleblowers, Birkenfeld retribution that could cost US taxpay- started his journey not seeking any ers billions? reward, but trying to get his employer Birkenfeld first raised alarms about to do the right thing. Yet in most cases, UBS’ banking practices in a series of a lone employee is powerless in a emails to his superiors in 2005, after a corporate culture that thrives on colleague allegedly brought to his breaking the rules. attention a year-old memo that forbade It is true that Birkenfeld formally soliciting Swiss banking services while approached the U.S. government after either the banker, client, or prospect Congress passed the new IRS whistle- were on American soil. “When I read blower law. But the record also shows it,” Birkenfeld said in an October 2007 that in 2006 — before it was passed — Stephen Kohn Senate deposition, “I was very that Birkenfeld traveled to the United concerned about what was going on in Stephen M. Kohn has represented States and hired attorneys for the the bank because this contradicted whistleblowers for 25 years. He is specific purpose of exposing UBS executive director of the National entirely what my job description was.” misconduct to the U.S. government. Whistleblowers Center and a partner at From at least 2001 until he resigned At his sentencing hearing, Birken- Kohn, Kohn & Colapinto, LLP. from UBS in 2005, Birkenfeld had feld’s extensive efforts to report and worked to help rich people hide fix the UBS misconduct in 2005 and millions in taxable assets from the US 2006 were simply ignored. The focus government. Birkenfeld claims he only at the hearing was not on the fact that Where have all the realized that what he was doing was Birkenfeld, for two years before whistleblowers gone? criminal after reading the memo. Congress enacted the reward provi- Corbin Hiar Two years later, Birkenfeld began sion, had attempted to report and fix Mother Jones, 12 March 2010 providing the US government a cache the UBS misconduct. Instead, the of UBS internal documents, business Justice Department fixated on the fact WHEN President Barack Obama’s jobs emails, and insider knowledge. The US that Birkenfeld had sought protection bill passed the House in early March, it used this information to extract a plea under the new IRS whistleblower contained a little-noticed provision to agreement from the Swiss government rewards law. recover part of its $35 billion price tag and UBS, in which the bank agreed to Never mind that he lost his job and by cracking down on offshore tax pay a $780 million penalty and to career. Never mind that he was facing evasion, which costs the US some release the names attached to 4,450 of 40 months in prison. The mere fact that $100 billion a year in lost revenue. The its 19,000 undisclosed US accounts. he sought the benefits and protections provision, which requires foreign Those accounts hold a significant of U.S. laws was turned against him. financial institutions to report more portion of the estimated $20 billion in Somehow the Department of Justice data to the Internal Revenue Service, previously hidden assets held by UBS’ argued Birkenfeld was not a real was likely prompted by a 2008 Senate US clients. This agreement, which is

10 The Whistle, #62, April 2010 now pending in the Swiss parliament, ment. During his trial, Birkenfeld pled from any details they provide on a could be a model for indicting other guilty and admitted to, among other scam that they weren’t directly banks in offshore tax havens — things, smuggling diamonds into the involved in creating. But the program countries with low (or no) taxes on US in a toothpaste tube for Olenicoff. hasn’t awarded a payout since it was banking assets, and strict secrecy laws “Oh, it was just a way of carrying them created in 2006. Kohn of the National to conceal the identity of their so I wouldn’t lose them,” Birkenfeld Whistleblowers Center is one of two depositors. That is, provided the US told 60 Minutes. “Where would you lawyers representing Birkenfeld in his can convince more whistleblowers put two diamonds?” application for the award (and may with evidence of financial crimes to In a letter to Attorney General Eric earn a sizeable cut of the reward if it’s speak up. Holder asking him to reconsider successful). The Government Ac- In the wake of the Birkenfeld Birkenfeld’s case, his attorneys argue countability Project’s Radack, a Bush- conviction, whistleblower advocacy that because he mentioned his relation- era whistleblower profiled by Mother groups say that’s unlikely to happen ship with Olenicoff to Senate investi- Jones, noted that a payment from the anytime soon. Jesselyn Radack, the gators, as well as other inquiries that IRS “could hopefully defrost the national security director at the were being conducted by the IRS and current chill on whistleblowers coming Government Accountability Project, Securities and Exchange Commission, forward.” says that her organization has been in Birkenfeld was not trying to shield his The idea of imposing a lighter contact with at least four financial client from the law. They also contend punishment — or making a hefty whistleblowers — including clients that Birkenfeld would have been more payout — to someone who has and employees of major Swiss banks forthcoming had he been offered the admitted breaking the law may sound — that “saw what happened to full immunity from prosecution that distasteful. But the economic crisis has [Birkenfeld] and are not going to come he’d requested. That explanation didn’t illustrated that there’s no shortage of forward.” She adds, “I can’t in good wash with Holder. The attorney financial malfeasance to be uncovered, conscience tell someone to go to the general’s office, which did not directly and as Birkenfeld has shown, just one government given its treatment of respond to Birkenfeld’s complaints, whistleblower can make a big differ- Birkenfeld.” When Birkenfeld was said in a written statement that his case ence. There’s no way to know whether locked up, whistleblower advocates had been “carefully considered” by the the DOJ is working with other mounted a campaign to commute his district court. Gerald Lefcourt, the informants behind the scenes — but if sentence — which they referred to as former president of the National it eventually turns out that Birkenfeld’s “an American tragedy” and “a Association of Criminal Lawyers, prison sentence did dissuade more disgraceful miscarriage of justice.” agrees with Holder. “The Senate is financial whistleblowers from coming Stephen Kohn, the director of the politics,” he explained. “What’s forward, then he may be one fraudu- National Whistleblowers Center, says important is making a deal with the US lent banker who didn’t belong behind the message sent by the US govern- attorneys … the other is icing on bars. ment was: “If you come forward, you the cake.” Lefcourt adds that the will go to jail and have your life sentence simply indicates the DOJ’s ruined.” low tolerance for witnesses who are But the story is a bit more not entirely cooperative. Notorious complicated than that. Birkenfeld mafia informant Sammy “the Bull” wasn’t indicted simply because he was Gravano “got five years for 19 involved in the illegal activities at UBS murders,” he points out. “It’s in the that he helped expose. The primary public interest to see that if you reason was his failure to disclose in his cooperate, you will get just rewards.” initial June 2007 meetings with DOJ But even taking into account the longstanding relationship he had Birkenfeld’s failure to be fully frank Bradley Birkenfeld pauses during a with a former client named Igor with the DOJ, the whistleblower press conference outside the Schuylkill Olenicoff, a billionaire real estate groups contend that he got a dispro- County Federal Correctional Institution developer then on trial for tax evasion. portionately harsh punishment. Judge in Minersville, Pennsylvania, Friday, 8 January 2010, before reporting to the In April 2008, Olenicoff was sentenced William Zloch of Florida’s Southern federal prison. to work 120 hours of community District Court handed him a sentence AP photo: Carolyn Kaster service, put on two years probation, 10 months longer than the 30 months and forced to pay a $52 million fine for the prosecution had requested. dodging $7.2 million in taxes. Whistleblower advocates say

The DOJ argues it could have won there’s one thing the government could a harsher judgment against Olenicoff do to encourage other Wall Street had Birkenfeld been more forthcom- insiders, accountants, or corporate ing. In May 2008, when the DOJ financial officers to expose fraud: Cut claims to have first discovered the Birkenfeld a big check. Under an IRS connection between the banker and whistleblower reward program, infor- billionaire, it charged Birkenfeld with mants are eligible for 15 to 30 percent conspiracy to defraud the US govern- of the collected tax proceeds resulting

The Whistle, #62, April 2010 11 National conference; articles

National conference, 2010 Compensation for work-injury officer said that while some work contracts today contain a Whistleblowers Action Group and whistleblowers Whistleblowers Australia full description of what is involved in and workers the performance of the work, many Emmanuel College, Mim Dekker merely name the title of the work. The University of Queensland latter militates against the worker Thursday-Sunday Workers compensation can be so proving that work s/he did caused the 25–28 November 2010 damaging and hazardous for work injury. Documents show the insurer injury applicants that they should does not always obtain information The programme for 25–26 November consider not applying for it or delay- about all work performed nor fix will be four half-day workshops, on ing, Cynthia Kardell and union officer incorrect information from the • Dealing with the bureaucracy {Brian Janet Giles explain (The Whistle, employer about work performed. It Martin, facilitator] January, p. 12). The pain, anguish and should be mandatory for the insurer, • Dealing with bullying [Bill Wilkie, suffering that work-injured people before any hearing or decision, to facilitator] experience by applying for their inform all applicants what evidence • Dealing with stress [Anne McMahon, compensation entitlement are indicated will be used for or against them. facilitator] in the compassionate comments of Ms When people disclose work-caused • Dealing with work performance Kardell and Ms Giles. On the other injury, it can expose the employer issues [Greg McMahon, facilitator] hand, no one should have to forego when there is lack of safety. And when their entitlement to compensation. compensation is granted it leads also to The conference on Saturday has the Whistleblowers too need compensation higher insurance premiums. Employers theme “Watchdogs & whistleblowers” if going public impacts on their health, may lose incentive rewards. Some with presentations on the following lives or careers. employers — not satisfied with the watchdogs. The suggestion that work-injured removal of fault from the statutes, persons, instead of applying for which means most work injury cases Ombudsman Associate Professor compensation, should take sick leave are denied access to common law and Anita Stuhmcke, Faculty of Law, UTS, or annual leave, as this would relieve higher courts — now use unfair means researcher into performance of the the pressure on them, is a concerned already mentioned, depriving genuine Commonwealth Ombudsman’s Office response. But if the injury is perma- work-injury cases their entitlements. Justice commissions [speaker invited] nent, delay can cause loss of compen- The then Parliamentary Minister, Media Alan Jones sation rights and a lifetime suffering The Honourable Tom Barton, said, “It Parliament Ray Halligan, former injustice. And why should the work- could not happen that the workers Chair of Parliamentary Committee injured have to lose their annual leave compensation office uses the wrong overseeing the Corruption & Crime when it is needed even more after and missing work to claim an applicant Commission WA work injury? If sick leave is used, what should be denied compensation — The courts [speaker invited] happens when sick leave is needed because there is a safeguard.” That after return to work? When work- safeguard is the “Statutory Claims Opening address by Col Dillon on injured, I took annual leave, long Procedure” that says the insurer is History of whistleblower-watchdog service and two years’ leave of required to inform the applicant when relationships in Queensland absence and lost not only my workers the employer contradicts what the compensation but also my job. applicant says is the work performed Also: The hardship and disadvantage or report about work injury for • a press conference and/or peaceful work-injury applicants experience example. When the Minister was demonstration about abuse of persons when applying for compensation is a informed that the insurer failed to in care symptom of systemic disease that apply the required procedure, he • presentation of Whistleblower of treats the work-injured too harshly. It sprang up, sending his chair flying. the Year Award on Saturday is not unknown and, as documents and dismissed the informant. This • WBA annual general meeting, show, procedures required to be happened at Queensland’s touted workshops and fellowship on Sunday applied by the insurer for workers democratic Community Cabinet where compensation (Workcover or some ministers are supposed to listen to the The organisers will provide a map to other body) are not always applied as people. show attendees living in where the they should be. The anomalies extend A psychiatrist, concerned local shops and restaurants are (just to problems as to whether the insurer about the undue suffering the workers around the corner) and the bus terminal obtained all evidence about the work compensation system causes numbers (around the bend). performed and whether the employer of work-injured people, disclosed or the officers recorded all work publicly that the insurer uses “hired accidents and work injury reports. A gun doctors.” These doctors, usually specialists in their field, allege that

12 The Whistle, #62, April 2010 applicants for compensation are lying. system but that often fail. This lack of Now if you can use your own leave Or taking a page out of oppressive rigour exists on Queensland, if not entitlements, then you, with your regimes, they claim that sane people other states also. We must speak up doctor stay in control. Your employer are “mental.” Former journalist John until our voices are heard. Edmund generally can’t direct you to see Barton said that it is claimed in the Burke said it: “All that is needed for anyone without your agreement and it face of doctors’ adverse statements, evil to prosper is for people of good has to take notice of your doctor’s “what can the work injured person do will to do nothing.” instructions. You would need to make about it?” When a car is damaged and sure your doctor is kept fully informed loss results, we expect compensation Mim Dekker is a member of Queens- on a regular basis. All your medical insurance will be paid. Insurance is land Whistleblowers and Whistleblow- certificates should provide details of paid for machines — how much more ers Australia and founder of the Injured your symptoms and sheet home the should it be granted for whistleblowers Workers Support Network. blame to your employer. If you don’t and genuine work-damaged human have a doctor, get one. Get a referral to beings? a psychiatrist or psychologist. Your A comment was that giving Stay in the driver’s seat doctors should keep a detailed record compensation does not address the Comment by Cynthia Kardell of what’s going on. Then, after you get original workplace issues causing back to work or decide to leave you injury. This is a significant gap. But Mim is right to be concerned about can put in what is known as a ‘closed this could be addressed by integration: you losing out, but my point is that you period’ workers compensation claim. by asking the applicant why and how should make sure you stay in charge of Plus you‘ll have the only record and they think the work caused the injury your affairs, when it matters most. the best record. and for suggestions on how to correct There’s plenty of time to bring a It’s known as a closed period claim it — to stop it happening to others. But worker’s compensation claim at the because it is for a set period and made a work-injured person said that the end, when you’ve successfully got after the fact. You would be claiming employer only implemented some of yourself back to work on your own all the usual things: monetary reim- what Worksafe on inspection said terms. So you need to be more bursement for the leave entitlements needed to be done, and what was left strategic and stay in control, whether you’ve used, all related expenses and undone could again cause injury. you want to return to work or not. compensation if applicable. That is, Monitoring could address this Think about when you make a stay in the driver’s seat. problem. motor vehicle accident claim. Once You can do the same if you opt for But in the experience of teacher you make the claim, you’ve legally medical retirement, but use your leave Robina Cosser, who applied to many given your insurer the right to decide entitlements upfront and then claim monitoring systems intended to rectify what’s to be done: even to the point of them back at the point you leave work, mistakes of others — the Queensland being able to sell your car back to you because that way you stay in control of Crime and Misconduct Commission if you don’t want it written off. your affairs for as long as you can. (CMC), Director-General of Education Workers compensation insurance is no Note that every employer in Ken Smith and others — her experi- different. Once you make your claim, Queensland, unless a licensed self ence was that, “most Queensland your employer is legally entitled to insurer, must have a workers compen- public service ‘reforms’ are designed involve itself in your affairs and dictate sation insurance policy with Work- by the abusers to protect the interests how, when what and why. Your Cover Queensland. In other states the of the abusers” (The Whistle, January, employer gets to be in control, largely WorkCover authority is just one of the p. 6). This is my experience too in tandem with their agent, the insurer. insurers and is also responsible for including the Ombudsman Office and It’s an all too familiar story. Your workplace health and safety regulation. the office of the Information Commis- own doctor’s views are no longer seen In Queensland, the Workplace Health sioner. to be important. You have to see their and Safety division of the Department The answer is not suppression or psychiatrist, not yours. S/he invariably of Employment and Industrial Rela- denial of work-injured people’s rights operates on your employer’s version of tions oversees all workplace health and and entitlements. The veil of the your history, not yours. safety. culture of cover up and blame the Some awful things happen. A victim must be lifted from the workers person once told me how as he said Cynthia Kardell is national secretary of compensation system. Both whistle- goodbye, the psychiatrist grasped his Whistleblowers Australia blowers who disclose publicly, and hand saying sympathetically I bet you work-injured people who disclose feel like killing the bastards some- work-caused injuries and lack of times. The whistleblower grimaced, safety, deserve and should be entitled barely raising a smile. You guessed it: to compensation for damage and loss the report came back with something of health and career. Instead we must like he shook his fist at me, shouting continue to speak up about the failure he’d kill the bastards. People do bad of the present monitoring and reform things for very little reason sometimes systems meant to deal with anomalies and money makes it all too easy. in the workers compensation insurance

The Whistle, #62, April 2010 13 Blowing the whistle on the that have not been researched and researched and analysed, and what has analysed by the project. not. whistleblowing project The conclusions and recommenda- The conclusions and recommenda- tions from the project have standing tions from the project may be being Executive summary of a critique of the with respect to situations advanced as a set of guidelines for all Whistling While They Work project • where the whistleblower has whistleblower situations. disclosed wrongdoing by co- The project does contain some Greg McMahon workers and supervisors, secondary data and anecdotal evidence • where the agency is a well inten- that is useful for the more serious and tioned agency that shares the more dissent-oriented whistleblower employee’s concern for the situations. Even the bulk data from the wrongdoing to be removed, and co-worker oriented survey is helpful. • where the reprisals are less serious The secondary data, the anecdotes and in nature, bulk results, however, only serve to that is, essentially in co-worker identify that the occurrences of wrongdoing and reprisal situations, systemic corruption and dissent colloquially termed as the “dobbing” whistleblowing are a real part of the whistleblower situation. public service in Australian jurisdic- The conclusions and recommenda- tions. These circumstances of systemic tions, however, do not appear to be wrongdoing thus should have been a drawn from a deliberate and structured part of any comprehensive study of The Whistling While They Work analysis of situations whistleblowing in Australia. project has only a partial coverage • where the whistleblower has dis- The project is unable to define the rather than a comprehensive coverage closed wrongdoing by the organi- critical parameters, the relationships, of whistleblower situations in the zation and its management the risk rates and other information Public Sector in Australia. • where the agency is affected by sufficient to provide guidelines for the Robert Needham, Chair of the systemic corruption, and is intent more serious reprisal situations and Queensland Crime & Misconduct on a close-out of any disclosures dissent whistleblowing and systemic Commission, announced the beginning about its wrongdoing, and, corruption scenarios. of the project, back in February 2005. • where the reprisals are more As a result, there is the prospect, Needham chaired and hosted the first serious and very serious in nature, real and immediate, that the Whistling meeting of the steering committee for that is, where the employee is showing While They Work project may become the project. resistance or dissent to wrongdoing by part of the problem for whistleblowing On 25 November 2009, however, in the organization, termed in the management in the systemic wrong- response to yet another scandal in the research literature as the “dissent’ doing scenario, as well as part of the Queensland Government, Needham is whistleblower situation. solution where the wrongdoing of co- reported to have stated: “I would be Professionals engaged in whistle- workers is the issue at hand. interested in ways in which public blower advisory, whistleblower pro- At worst, the project may be acting servants can be empowered to say no.” tection and whistleblower support to paint the situation for whistleblow- After $1 million in funds and public activities need to exercise a duty of ers in Australian jurisdictions using servant hours, the project appears to care towards all employees, not just colours that are much rosier than the have failed to deliver this primary whistleblowers. Whistleblowers are real situation merits. outcome for its partner organisations employees, and should be shown that The WWTW documents appear to The project has simply failed to duty of care in any advice, protection have more the characteristics of a address the forms of systemic wrong- measures and support that are provided consultant’s report. The terms of doing, of which the sports rort allega- to them prior to, during or after a reference for that consultancy may tions may be a current example of a disclosure has been made, and/or a reflect only the view of the world held continuing phenomenon. The coverage suspected reprisal has been experi- by the client organizations, and this that this project has provided is of the enced. may have led to a major omission. The minor or secondary or lower volume Such activities by integrity profes- WWTW documents may not have the forms of whistleblowing and reprisals sionals should not be carried out characteristics of independent research taking place in government offices. recklessly, without regard to the extending the state of knowledge of The project, and its conclusions and assumptions and scope limits and organizational dynamics associated recommendations, may thus constitute background circumstances from which with wrongdoing against the public a health and safety risk for the majority guidelines and factors have been interest. of public servants who make public deduced. The causes for this limitation on the interest disclosures about wrongdoing The press releases and interviews, applicability of the project appear to in their workplace. submissions and papers from the be: The risk may occur where the project do not appear to be accepting • the failure of the project to consult conclusions and the recommendations this boundary between what has been with whistleblower organizations of the project are applied in situations

14 The Whistle, #62, April 2010 so as to gain the whistleblower seen to be dominating, by 3 to 1, criminal liability on the part of perspective the retaliation rates from co- any individual • the large scale consultation effort workers. • Use of language like absence of that was made, focused on the • The project claimed that it had commitment, violation of systemic agencies and watchdog authori- discovered the strength of retalia- procedural justice and less ties, that led to an apparent bias tions coming from higher positive reporting climate when towards the perspectives of these management, when the literature words like “the presence of stakeholders appeared to show that others were systemic wrongdoing” seemed Some technical aspects to the well advanced, by as much as 10 more to the issue or at least of project contributed to its failure in years, upon this discovery by the similar likelihood important regards: project • The use of a systemic wrongdoing • The definition used for whistle- • The project criticized whistle- scenario, not to explain the results blowing diluted the figures on blowing organizations and from the project survey, but to whistleblowing with disclosures academics as having an “anti- argue mitigation of the error made that had no public interest dobbing mentality,” when these by the project in the definition of relevance (and thus were not about stakeholders had been on the whistleblowing whistleblowing). Efforts to cure record for a decade about systemic • Admitting the flaw in the method- the study of this dilution effect wrongdoing, regulatory capture ology, namely that the cross- tended to confuse the analysis and dissent whistleblowing sectional survey approach meant with switches during argument • The figures on retaliation are that the results did not include amongst multiple populations of biased by the absence from the those who have suffered re- different types of “whistleblow- survey of the terminated whistle- trenchment, forced transfer or ers” blowers, where termination is the dismissal but then using this bias • The cross-sectional survey acted worst form of retaliation imposed in the results to claim that when to omit from analysis most upon whistleblowers bad treatment does occur, it is whistleblowers who had or would • The project referred to the whistle- unlikely to involve a single experience termination as a result blower cases in Quentin Demp- decisive blow such as a sacking of their whistleblowing, including ster’s book Whistleblowing as • The rejection of one result from those who simply exited the “mythic tales.” This may reflect a the survey of managers and case organization to free themselves reluctance by the project to accept handlers, by claiming that the from any involvement or associa- as real the major whistleblower unexpected result indicated that tion with the wrongdoing cases or as real the evidence that the managers did not know their • The linkages to the state of knowl- they offer about systemic corrup- own organization edge about whistleblowing, both tion amongst organizations similar • The prospect that the conclusions from past research, from the major to the partner organisations of the and recommendations may be whistleblower cases, and from project close to or aligned with govern- recent inquiries arising from • The press releases advertised ment spin on the integrity of our disclosures by whistleblowers, retaliation rates as low as 22%, administrative and justice systems were underdeveloped or non- where these figures were gained It is recommended that the whistle- existent from self-nominating whistle- blower organizations derive their own • Critical parameters, such as the blowers. The 22% figure was policy as to what constitutes best prac- seriousness of the allegations selected when sections of the tice research into whistleblowing. made, and the degree of systemic study for known whistleblowers corruption established within suggested that the retaliation rates Greg McMahon is national director of agencies and watchdogs, were might be 66%. The 66% figure, if Whistleblowers Australia and secretary crudely structured or over- adjusted for a likely percentage of of the Whistleblowers Action Group, simplified. Any peaks in the terminated whistleblowers, might Queensland.

stratifications that would be have been 80% For a copy of the full report, contact expected to dominate these • The inconsistency, where the Greg at [email protected] parameters were smoothed out by project dismisses prior research the crude treatment and simplifi- because of the way that that cations. research formed its study group of The credibility of the project also whistleblowers, but then the suffered as a result of practices used project uses the same methodol- and claims made by the project: ogy for gathering its group of • The project did not include the known whistleblowers possibility of the systemic-wrong- • The assertion made without doing or dissent-whistleblowing research that only in very rare situation in its analytical frame- cases is the nature of the reprisal work, when the retaliation rates such that it could meet the legal from higher management were thresholds required to prove

The Whistle, #62, April 2010 15 Whistleblowers Australia contacts WBA membership

Postal address PO Box U129, Wollongong NSW 2500 According to WBA’s constitution, you remain a member until you formally resign your membership by notice to the “Caring & sharing” meetings We listen to your story, secretary. Membership fees are due each year before 1 provide feedback and possibly guidance for your next few July. Any outstanding subscriptions/fees accrue as a debt steps. Held 7.00pm on the 2nd and 4th Tuesday nights of until paid. A member must clear all debts before resigning. each month, Presbyterian Church (Crypt), 7-A Campbell (See the WBA constitution, clauses 6, 8 and 10, at Street, Balmain 2041 http://www.whistleblowers.org.au.) Contact Cynthia Kardell, phone 02 9484 6895, fax 02 9481 What this means — in principle, not practice — is that if 4431, [email protected]; Peter Bennett, phone 07 you were a member in 2000, didn’t pay for ten years and 6679 3851, [email protected] decide to start paying in 2010, you owe ten years’ worth of Website http://www.whistleblowers.org.au/ back membership fees — because you didn’t know about the requirement to resign, or didn’t bother doing it. Goulburn region contact A lot of people think that if they stop paying, they’re no Rob Cumming, phone 0428 483 155. longer a member — but according to WBA rules, they Wollongong contact Brian Martin, phone 02 4221 3763. remain members: they are unfinancial members or in other Website http://www.bmartin.cc/dissent/ words members in arrears. So what? The main practical Queensland contacts Feliks Perera, phone 07 5448 8218, effect is that they can’t vote at general meetings until they [email protected]; Greg McMahon, phone 07 3378 pay their arrears. 7232, [email protected] The issue of WBA membership fees was debated at length at the December annual general meeting, with South Australia contact John Pezy, phone 08 8337 8912 disagreement about the way memberships should operate Whistleblowers Tasmania contact, Isla intermixed with how they actually operate in practice. (The MacGregor, phone 03 6239 1054 standard practice is that members in arrears for three years

Victoria contact Stan van de Wiel, phone 0414 354 448 or more are notified that they will cease to be members unless they pay up.) Whistle The WBA constitution on this matter follows the model Editor: Brian Martin, [email protected] rules for incorporated bodies in NSW. Phones 02 4221 3763, 02 4228 7860 If you think the constitution should be changed on this or Address: PO Box U129, Wollongong NSW 2500 any other matter, you can propose a motion for the next Associate editor: Don Eldridge general meeting. It would be a good idea to check the Thanks to Cynthia Kardell for proofreading. constitution to make sure you do everything according to the rules! WBA annual membership costs a modest $25, unchanged for many years.

Whistleblowers Australia membership

Membership of WBA involves an annual fee of $25, payable to Whistleblowers Australia, renewable each June. Membership includes an annual subscription to The Whistle, and members receive discounts to seminars, invitations to briefings/ discussion groups, plus input into policy and submissions. To subscribe to The Whistle but not join WBA, the annual subscription fee is $25. The activities of Whistleblowers Australia depend entirely on voluntary work by members and supporters. We value your ideas, time, expertise and involvement. Whistleblowers Australia is funded almost entirely from membership fees, donations and bequests.

Send memberships and subscriptions to Feliks Perera, National Treasurer, 1/5 Wayne Ave, Marcoola Qld 4564. Phone 07 5448 8218, [email protected]

16 The Whistle, #62, April 2010