Whistleblower Woes

Can the boss straighten out two misguided employees who blew the whistle on his regulatory agency's prosecution of a giant corporation without the appearance of coercion?

Every organization needs to discuss options and alternatives frankly and openly, and to solicit many points of view. Some of these views will be rejected on the way to the ultimate decision. The presence of the counsel at the high-level meeting was not suppression, it was participation. And the final legal opinion, had it been examined, would have shown Jansen and Cohane that their suspicions were unfounded.

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ou said you wanted the Nova case to be splashy, didn't you, boss?" said Ray Elliot, his forced smile acknowledging a doomed attempt at humor. The brash young staff assistant watched an increasingly agitated Al Campbell, director of regulatory enforcement, read a newspaper account of a highly sensitive meeting involving senior officials of his agency the previous week. If the article were true, not only the Nova price control case, but the enforcement program, and several careers-including his own-were in peril.

The regulatory agency was prosecuting the Nova Energy Corp. for not cooperating with new price control regulations. Warren Lavery, a Daily Times business writer, had reported that an opinion by the agency counsel's office favoring the corporation's position had been suppressed. The article said agency officials had decided to destroy all records of the high-level meeting at which the opinion had been discussed. The information was attributed to agency employees Martin Jansen, a mid-level auditor, and Janice Cohane, a junior attorney. The staff members were quoted as saying they were forced to blow the whistle. The decisions were made at too high a level, they said, leaving no internal channels for appeal.

The employees professed their loyalty to the agency and its mission. But they said the inevitable unraveling of the Nova prosecution and the ethical cloud in its wake would be greater setbacks to legitimate enforcement than the embarrassment of being forced to reverse an ill-considered decision.

"Did Lavery call anybody here for confirmation of these allegations?" Campbell asked his assistant as he threw down the newspaper in disgust. "I've got a memorandum of the meeting, so it can't be true that all records were suppressed. And my understanding of the discussion of the counsel's office opinion doesn't exactly jibe with their story, either. That was an early draft used largely as a devil's advocate position in planning strategy. The final legal opinion says flatly that Nova has serious multiple violations."

"We didn't get a call, Al, although Lavery may have tried someone else," Ray replied. "But we're the ones who will have to answer all the questions now, so we'd better talk about it."

"Just give me a few minutes, Ray. There's a lot riding on what we say and do now," cautioned Campbell. As Elliot reluctantly retreated, the enforcement director retrieved his copy of the meeting memo and began analyzing the situation. He believed he was dealing with two decent, well-motivated employees who had misinterpreted an ambiguous scenario. Of the two, only the less-experienced Cohane had been at the meeting. She had apparently perceived the rejection of a draft opinion by another junior attorney as squelching an unbiased view. She believed entrenched forces were seeking to protect their interests in an exemplary prosecution of a "big fish"-one that had perhaps defied them in the past.

Cohane had shared her discomfort with Jansen, whose years of audits had convinced him that other companies had gotten away with far more serious noncompliance than Nova's. But what made them think the agency was trying to cover up the first legal opinion and the meeting discussion about it? Had they tried unsuccessfully to get a copy of the meeting memo?

Campbell was convinced that Cohane and Jansen were genuinely seeking to protect the integrity of the enforcement program. But that was his job, too, and he and his senior colleagues concluded that a prompt and highly visible prosecution of a recalcitrant industry giant like Nova was necessary to establish the seriousness of the new regulations. A simple conversation with the auditor and the attorney could straighten out their misinterpretations, but any approach now might be seen as pressure on them to recant. And how would their superiors and peers feel about working with them in the future after they had washed the agency's dirty linen in public? What would morale be like in the organization if Cohane and Jansen were corrected? Or if they weren't? Most important, what was it about his enforcement program that had made it so easy for them to believe that a wrongful prosecution and a cover-up were taking place?

JUNE GIBBS BROWN: HEAR OUT COMPLAINTS
June Gibbs Brown is inspector general of the Health and Human Services Department. A career civil servant with accounting and law degrees, she is the only person to have served as IG of four federal agencies. Her appointments were by Presidents Carter, Reagan and Clinton.

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nce whistleblowers go public, it is important that management not take or give the appearance of taking retaliatory steps. At the same time, the public airing of perceived differences during an ongoing enforcement action raises serious concerns that must be addressed. Since further damage to the enforcement action is possible, a carefully handled meeting with the employees is often appropriate. The meeting could be with all dissatisfied employees unless there is reason to believe personal, confidential issues would be raised. To avoid further misunderstandings, it is advisable to have at least one other management official in any discussions. A written record of the discussion may be appropriate.

The discussion should first focus on clearing up any misunderstandings and, second, on other avenues of addressing concerns about agency actions. Managers are not precluded from addressing problems caused by a public airing of legal disputes and offering employees alternative methods of registering complaints. But the manager must assure the employees of their right to engage in protected whistleblowing activities. The scope of the discussion should be based on the individual situation, taking into consideration factors such as whether any administrative complaints are pending.

Once an adverse and possibly false story appears in the press, managers face the difficult decision of whether further press contacts would help or further aggravate the situation. The decision is further complicated when enforcement action is pending. At a minimum, the decision should be discussed with those handling the action. A manager should find out more about the reporter and the publication to determine whether further press contacts would be futile. Retractions are rare and a follow-up story would not be guaranteed. Questioning the reporter would be particularly delicate and could be misunderstood. In order to set the record straight, a manager could issue a statement instead of making informal contact.

The next major issue in dealing with whistleblowers is to assess the management implications of the employees' action. Was there a basis for the employees to believe there could be a cover-up? Was there a basis for the employees to believe there were no other avenues for airing their grievances? These issues could be explored in the meeting with the employees. Other meetings to discuss the office climate might logically follow. A manager should consult employees in his/her organization with good judgment on management issues.

Merely discussing the reactions of senior colleagues to the revelations would not necessarily be productive. A more productive approach would be to explore the particular incident leading to the whistleblowing activity. Find out why the employees felt a public release was necessary. Discussions with senior officials could explore what, if any, steps management needs to take in response.

If none of these actions resolve the issues, it may be advisable to contact the agency inspector general to evaluate the situation to determine culpability. An independent inspector general report can eliminate guilt as well as establish fault.

IRVING WELFELD: CUT CONSPIRACY SHORT
Irving Welfeld is an analyst at the Housing and Urban Development Department and is the author of HUD Scandals-Howling Headlines and Silent Fiascoes (Transaction Publishers, 1992).

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his is a "man bites dog" case. The usual whistleblower complains that the agency is lax in not prosecuting cases. In this bizarre case, the agency is accused of unethical conduct in prosecuting a case.

This is the conspiracy theory of a young staff attorney, an auditor and a reporter who have read Woodward and Bernstein cover to cover. The agency attorney, Janice Cohane, and auditor Martin Jansen who leaked the information to the press are described as decent and well-motivated.

In their zeal to protect the public interest, they are protesting what they view as the ignoring of a legal opinion and the destruction or suppression of all meeting records by entrenched forces (i.e. senior officials) who had a strong desire to prosecute a "big fish" (or get even with Nova for prior defiance). The whistleblowers were trying to prevent greater setbacks to legitimate enforcement which they felt was worse than reversing an ill-considered decision.

An assessment would note both procedural and substantive damage. One of the most important elements of the decision-making process is the ability of officials to secretly discuss and decide sensitive matters candidly. Although in this instance the agency was blind-sided by the press, it can take a hit, since it has developed a reasoned response in which senior officials were in full agreement. On the substantive side, given the imperative of an enforcement agency to enforce, proceeding to prosecute Nova is not subject to criticism. Nevertheless, time will be wasted since Congress is likely to want to know what is going on and the congressional committee involved will no doubt have at least one "friend" of Nova seeking to sabotage the prosecution.

I would call both of the employees, together, to my office. I would explain to them that their enthusiasm and self-righteousness outran their responsibility, intelligence and good judgment. The employees leaked privileged information. As an attorney, Cohane violated attorney-client privilege. They made false claims against the agency about the destruction of all documents. They impugned the integrity of the agency and its senior officials in claiming the agency was prosecuting Nova because of a grudge.

Even if the case was not strong, prosecution will send a message of a new attitude at the agency and quite possibly lead to a settlement. And the employees set back a legitimate case because of time needed to mollify congressional curiosity.

I would recommend a light penalty-a letter of censure for the employees' personnel files and an unsatisfactory performance rating for the year. Two reasons: First, the employees' 15 seconds of fame for getting their names in the paper cost a lifetime of distrust among colleagues. Second, the great deal of distrust of agency officials by the career bureaucracy would be dissipated by responsible whistleblowing.

This case smacks of the 1980s, when distrust between the senior policy-makers and the bureaucracy was rampant-albeit with relatively little whistleblowing and many good, if unhappy, soldiers. To prevent that kind of situation from developing again, the agency should make known to its employees its enforcement decisions and the reasons for its decisions. (This poses a slight problem when a decision is made not to enforce in a district where the chairman of the appropriations committee sits.) Senior staffers should be accessible, which is possible through widespread use of computers and electronic mail. And if the objection raised is at all reasonable, a response should be required. This may not make the troops happy, but at least it will give them reason to know why they are unhappy.

CHARLES F. BINGMAN: EDUCATE THEM
Charles F. Bingman, a retired federal executive, teaches at the George Washington University School of Government and Business Administration. He is a fellow of the National Academy of Public Administration.

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nybody who has worked in a regulatory organization, or has ever had to deal with one, would recognize the high irony of this so-called whistleblower scenario. Regulatory agencies are subject to many kinds of internal and external review and oversight. Jansen and Cohane should have given the protective mechanisms of their own agency a chance to react before taking their concerns outside the organization. The irony lies in the fact that, if anything, the protective mechanisms of government agencies are over-designed to the point of oppression, yet none of these mechanisms were utilized.

Al Campbell is right to be concerned about why two capable and responsible people have such little trust in their leadership. But Jansen and Cohane need to take a hard look at their own motives. They hastened to make the following bad assumptions:

  • They understood what was happening.
  • They could not speak frankly to their own bosses.
  • Nobody would listen to their concerns.
  • The organization was acting improperly by suppressing some views.
  • They were the only ones interested in doing the right thing.

Al Campbell now has a lot to do. He needs to meet with Janice Cohane and Martin Jansen to set them straight on how the organization really makes its decisions. He needs to contact Warren Lavery of the Daily Times and give him a balanced summary of what really happened, and hope that the reporter will write a responsible follow-up story. He also needs to engage in some form of communication with all employees in the agency to assure them that the top officials do not suppress facts and are prepared to promptly and vigorously pursue their case against the Nova Energy Corp. Campbell must establish that the decision to pursue Nova was not a result of media pressure, but came from the proper functioning of the agency's decision-making process.

Campbell's approach should be open and frank. He must avoid being defensive. In fact, he has no reason to be defensive. But he should deliberately use his after-the-crisis discussions to ask agency employees for suggestions on how critical agency decisions can be better made and better communicated. Cohane and Jansen have nothing to be punished for, but they do have a lot to learn about the functioning of their agency and how they can participate in it effectively. Once enlightened, their next contributions may be positive ones.