The challenges of whistleblower oversight

By Peter Hourihan
Public Interest Commissioner

The Public Interest Disclosure (Whistleblower Protection) Act came into effect on June 1, 2013, making Alberta the seventh provincial jurisdiction in Canada to enact such legislation.[1]  The enactment brought with it a number of challenges.  Some will require a shift in perspective while others will take time to meet.

When the Alberta government introduced the Act in the Alberta legislative assembly, it indicated it was progressive legislation. Former Premier Alison Redford stated,  “[w]e promised a fundamental change in the way government works and this new Act is a critical part of that pledge to Albertans…[b]y putting whistleblower protection in place we will continue to lead the way in open, accountable government.”[2] It did so under criticism by the opposition to government. They were concerned the legislation did little to protect whistleblowers.  During the debates in the Legislative Assembly,[3] there was significant concern the Bill was too restrictive and the commissioner’s powers too broad.  The opposition parties argued a whistleblower should be able to disclose anywhere to anyone, that the definition of wrongdoing should be broadened to include breaches of a code of conduct, and that policies or directives and harassment ought to be included.  There was also concern the Bill did not include the private sector nor did it include compensation as a remedy.  Ultimately, the Bill was passed without amendments.

Significant concern was voiced by David Hutton, Executive Director of the Federal Accountability for Reform (FAIR).  In his paper, Shooting the Messenger: The Need for Effective Whistleblowing Protection in Alberta, Hutton criticized the Government of Alberta for its lack of attention to real whistleblower protection, stating “the government introduced a bill that, far from representing best examples from around the world, sets a new low, even within Canada.”[4]

Hutton identified what he referred to as “serious shortcomings.”[5]  The most serious for him was the Commissioner’s exemption powers in section 31 of the Bill to exempt anyone or anything.  This was followed by his concerns the legislation contained no remedies or ability to challenge the Commissioner’s findings.[6]

As the Public Interest Commissioner, I appreciate the perspectives, however, my responsibilities are encompassed within the Act proclaimed.  My role is to work with and within the Act to fulfill the stated purposes of facilitating disclosures and investigations of significant and serious matters, to protect employees who disclose, to make pertinent recommendations and to promote public confidence in the public sector.[7]  The Act includes a requirement to commence a legislative review within two years of the coming into force date, per section 37[8]. This is the responsibility of the Standing Committee on Legislative Offices. In 2015, I will offer an opinion to the review committee based on the experience of our first two years.

There are a number of challenges in whistleblower oversight.  They can present as hurdles when getting established as a new oversight office.  This paper discusses some of the challenges and offers some suggestions on overcoming them.

The Government of the United Kingdom defines whistleblowing as a matter “when a worker reports suspected wrongdoing at work. Officially this is called “making a disclosure in the public interest. A worker can report things that aren’t right, are illegal, or if anyone at work is neglecting their duties …”.[9]

One definition of whistleblower is “an organizational or institutional ‘insider’ who reveals wrongdoing within or by that organization or institution, with the intention or effect that action should be taken to address it.”[10]

Alberta’s Public Interest Disclosure (Whistleblower Protection) Act does not define either whistleblowing or whistleblower.  In fact, the term is used only once, in the title.  What then does whistleblowing include in Alberta?   To determine this, a quick review of the Act is required. The term ‘disclosure’ is defined to be a disclosure of a ‘wrongdoing’ made in good faith by an employee.  A ‘wrongdoing’ is explained in section 3 as: a contravention of an Act or Regulation; an act or omission creating a “substantial and specific danger” to the life, health or safety of individuals or to the environment; gross mismanagement of public funds or public assets; or directing or counselling someone to commit a wrongdoing.  And, ‘employee’ is defined as an individual employed by a department, public entity or Office of the Legislature, or someone who suffers a reprisal and has been terminated.  It would appear then, a whistleblower is someone who discloses a significantly wrong act or omission.

The definitions contemplate whistleblowing as being the disclosure itself.  Reprisal or subsequent action or reaction to a disclosure is not considered as part of the definition.  It is my opinion, however, most people generally recognize something as whistleblowing only when the disclosure is met by a response not favourable to the whistleblowing or to the whistleblower personally.  It is when there is a negative reaction toward the whistleblower that people take particular notice or at the point where there is a demonstration by the organization it is not addressing the matter correctly. This, I contend, is when it truly becomes whistleblowing. This is where a challenge arises for an external agency such as the Public Interest Commissioner’s office, particularly in terms of education and awareness.

The goal for a new oversight agency is to encourage organizations and individuals to embrace whistleblowing as a favourable way to move forward and to improve efficiencies and effectiveness.  There are a few hurdles to overcome in any quest to invite people to join in a movement to embrace whistleblowing and change the culture from one of ignorance, apathy, willful blindness, outright deceit or corruption, where present, to one where deficiencies and manipulations are eliminated and positive recognition is directed to the whistleblower.

The first hurdle is helping others recognize that a disclosure acted upon effectively is a whistleblowing event. As noted earlier, it is my proposition most people only consider something to be worthy of whistleblowing when a disclosure is followed by inadequate or no action and/or where the discloser suffers some form of reprisal.   Incidents that are reported, acted upon and no reprisal follows or the discloser is celebrated positively fly under the radar as a mere activity of improvement; one that ought to take place.  There are examples in organizations where improper activity is noticed, such as fraudulent claims, theft of equipment, or sexual harassment, is reported to a supervisor or about a supervisor and where the matter is reviewed or investigated effectively and dealt with no repercussions toward the discloser or whistleblower. It is unfortunate these examples are not viewed as positive whistleblowing events; ones that demonstrate the positive attributes of surfacing deficiencies, offences, corruption, etc.  Positive examples can have positive results in changing a culture. And changing the culture is the larger purpose of the legislation.

The second hurdle is discerning the parameters of what constitutes a wrongdoing and the difference between mismanagement and gross mismanagement.  Many people believe any wrong is a wrongdoing and the words are interchangeable. The Act does not define wrongdoing per se. It describes it as applying to some wrongdoings such as offences, substantial and specific dangers and gross mismanagement[11]. This causes some interpretation issues because neither “substantial and specific” or “gross” are defined.  These terms are defined in Black’s Law Dictionary:[12]

Gross:              great; culpable; general; absolute

Specific:           precisely formulated or restricted; definite; of an exact or particular nature

Substantial:    of real worth and importance; of considerable value; valuable

From here it is relatively easy to discern a wrongdoing under the Act is more than mismanagement and is serious in nature.  Organizations, by nature, mismanage regularly.  One needs only look at the literature and practice around quality control, quality assurance, best practice, auditing, etc., to see how mismanagement is used continually to improve.  Those activities involving offences, substantial and specific dangers and gross mismanagement are at the other end of the spectrum.  This type of mismanagement requires diligence to ensure the right focus is placed on correcting the behaviour and not shooting the messenger.

The difference between what is mismanagement and gross mismanagement is not clear and significant debate can result. Each situation needs to be evaluated on the complete set of facts in the specific situation.  This is one of those areas where something is hard to define, however, a set of facts will provide a determination or categorization.

Fortunately, the consequences of making a determination are not particularly problematic no matter what the determination is.  If an act or an omission is wrong it ought to be corrected. The same holds true for a deemed wrongdoing.  The nature of the corrective action will likely be more serious as the breach is likely more serious.  Either way, action is expected to the degree required to remedy the wrong or the wrongdoing.

In Alberta, my practice as the Public Interest Commissioner, albeit limited,  is to make recommendations to the department or public entity about doing what is required to remedy the matter when a wrongdoing was found.  I track my recommendations and follow-up with the entity. If the matter falls short of a wrongdoing but is still considered to have been wrong, I make an observation to the department or public entity that this is the case and remind them they ought to remedy the wrong.  Whether I deliver a recommendation or an observation, it is important for entities to implement suggested corrections to resolve or mitigate concerns and risks.

A third hurdle is the presumption the Act provides no real protection to the whistleblower.  There is a significant concern facing whistleblowers who come forward there will be reprisals against them when they disclose a wrongdoing. Many contrarians note there is nothing in the Act or in practice to ensure there are no reprisals for whistleblowers.  This is partially true.  There is nothing that can defend someone from being reprised against.  The protection comes in the form of penalties if a reprisal is imposed.  In Alberta, the fines are substantial ($25,000 for a first offence and $100,000 for a subsequent offence).[13]

There can always be a debate as to whether this is a deterrent, however, for purposes here, the protection is limited to after the fact protection.  This is not unlike other societal protections found in criminal law, or insurance, for example.  People are protected against personal violence after the fact or protection from fire or life insurance once an event takes place.  Little can be done prior to the event, save good planning and preparation.  And, in the spirit of the larger purpose of the legislation, changing the culture.

There is some protection for whistleblowers who conform to the Act.  Perhaps the strongest protection comes through the ability of employees to share confidential information with the Public Interest Commissioner – information that would normally be subject to confidentiality or other employment agreements.  This confidential information can be revealed to the Public Interest Commissioner without issue and the whistleblower remains protected.  The same is not the case if the whistleblower takes the matter public or approaches the media, etc.  There is no protection there.  Current case law suggests the threshold for revealing information publicly is receiving more tolerance by the courts, however, it is still seen as a breach of employment agreements in many cases.

Whistleblowing is an important tool for public sector organizations. Dedicated and conscientious employees are best positioned to advise supervisors or others when action ought to be taken to fix wrong behaviour or a wrongdoing.  Unfortunately, too often, employees involved in nebulous, nefarious or criminal activity are not often going to want the information to come out.  They will do whatever they can to deflect the attention away from themselves or their friends, while doing all they can to discredit the discloser.

Our goal at the Public Interest Commissioner’s office is to take the best advantage of the provisions of the Public Interest Disclosure (Whistleblower Protection) Act and fulfill the purposes of the Act, namely, to facilitate and investigate disclosures of wrongdoings, protect those who disclose, make effective recommendations and, most importantly, to promote public confidence in the administration of government.  Having said this, our larger aim is to advance and develop a culture where management and employees embrace and promote whistleblowing, recognizing this process as critical to ensuring the integrity and health of organizations.