Receiving and solving public interest disclosures: legal nature and responsibilities in managing them

Author:Prof. Phd. Emil Balan - PhD. candidate Iuliana Cospanaru
Pages:172-179
SUMMARY

Whistleblowing - public interest reporting or disclosure made by a person working in the apparatus of a public entity, aware of details of the administrative activity, otherwise non-accessible to third parties or the general public - plays an important role in preventing or early detecting those situations in which non-compliance with the principles of administrative procedural law may affect the validity of documents, the performance of the legal competencies of the institution or citizens` rights. This paper explores the legal nature of the whistleblowing report and what are the legal obligations that derive from this nature, with the aim of identifying what are the institutional structures responsible to manage it, what role plays each of these structures and how whistleblowing complaints should be handled such as to maximize its benefits for the public institution.

 
CONTENT
172 EMIL BĂLAN, IULIANA COŞPĂNARU
SECTION 4. CHALLENGES IN MONITORING AND
EVALUATION OF PUBLIC ADMINISTRATION
RECEIVING AND SOLVING PUBLIC INTEREST
DISCLOSURES: LEGAL NATURE AND RESPONSIBILITIES
IN MANAGING THEM
Prof. Phd. Emil BLAN,
PhD. candidate Iuliana COŞPNARU
ABSTRACT
Whistleblowing - public interest reporting or disclosure made by a person working in the
apparatus of a public entity, aware of details of the administrative activity, otherwise non-accessible
to third parties or the general public - plays an important role in preventing or early detecting those
situations in which non-compliance with the principles of administrative procedural law may affect
the validity of documents, the performance of the legal competencies of the institution or citizens`
rights. This paper explores the legal nature of the whistleblowing report and what are the legal
obligations that derive from this nature, with the aim of identifying what are the institutional
structures responsible to manage it, what role plays each of these structures and how whistleblowing
complaints should be handled such as to maximize its benefits for the public institution.
Key words: public interest reporting, public institutions, whistleblowing, good administration.
JEL classification: K23.
Public Interest Disclosures – General Considerations
Whenever maladministration occurs, a legitimate question raises regarding
any option available to proactively identify such situations and prevent them
before such maladministration occurs. Whistleblowing has been identified as such
an option and defined as reporting or disclosure for public interest, regarding
actions or omissions which represent a threat to or are detrimental to the public
interest, made by a person who becomes aware of them while performing his/ her
professional activity. This wide definition builds on the existing national and
Prof. Phd. at NUPSPA, Faculty of Public Administration.
 Phd candidate at NUPSPA, Administrative Sciences and Deputy director at Transparency
International Romania.
Law Review vol. VI, special issue, December 2016, p. 172-179
Receiving and solving public interest disclosures… 173
international legislation in the field as will be revised below, based on our previous
paper “Disclosure mechanisms for non-compliance with the general principles of
administrative procedural law. The whistleblowing1”.
One key element of this instrument is the quality of the person submitting
such complaint – a professional who becomes aware of a threat to the public
interest at an early stage, before its risks materialize. A second such element is his/
her capacity to alert the responsible structures in a public institution to take the
adequate measures to prevent and/or mitigate this thereat, before its consequences
become irreversible.
To maximize the benefits of such instrument, adequate protection shall be
granted to those professionals who take the courage to report a threat to the public
interest. As indicated in our previous paper, most of the existing legislation has
focused on these protection elements, while additional regulation is needed to
ensure a standardized procedure to handle the complaints.
The whistleblowing concept has been developed and incorporated for the first
time in the Code of US Federal Regulations - the equivalent of an administrative
code - in Chapter 5, dedicated to the administrative staff. The legal provisions
prohibits the sanctioning of a federal official if he/ she reports a fact about which
has data that reasonably suggest a law violation, a misuse of public resources or
any abuse2. Detailed provisions on how to handle these kind of complaints about
possible violations of the law have been subsequently included in the law
reforming the US public service since 19783. In 1989 has been adopted the first legal
document devoted exclusively to the whistleblowers protection4 - freely translated
the protection of those that "blow the whistle" or call attention about irregularities.
Globally recognized international legislation providing for a similar legal
provision has been adopted in 1982, under the UN aegis, - the Termination of
Employment Convention, which came into force in 1985. Among the grounds for
unjustified termination of the labor contract, prohibited by the Convention it is also
mentioned "the filing of a complaint or the participation in proceedings against an
employer involving alleged violation of laws or regulations or recourse to
competent administrative authorities”5.
It was in 2003 that whistleblowing has been officially linked to corruption
prevention, when it was included in the UN Convention against Corruption,
adopted in 2003 in Merida. Article 33 of the Convention stipulated that „each of the
1 To be published. Presented during the International Conference “Europeanisation of
administrative law and codification of administrative procedure”, held in Cluj-Napoca, between 13
and 14th of May 2016.
2 Section 2302, (b) (8), of Chapter 5 of the Code of Federal Regulations, http://uscode.
house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section2302&num=0&edition=prelim
3 Civil Service Reform Act of 1978
4 Whistleblower Protection Act of 1989
5 Art 5 c) http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_
INSTRUMENT_ID:312303
174 EMIL BĂLAN, IULIANA COŞPĂNARU
member states shall incorporate into the national legal system the necessary measures to
guarantee the protection against the unfair treatment applied to any person who reports to
the competent authorities, in good faith and based on reasonable grounds, any facts
concerning offenses established in accordance with this Convention (that is corruption
offenses)". Romania has ratified the UN Convention against Corruption by the
Law no. 365/2004, while the convention came into force in 2005, after ratification
by the 30st country.
The Council of Europe, through its Committee of Ministers6 and Parliamentary
Assembly7, has adopted recent regulations in the field, which are considered the
most comprehensive to the date. Following these models, a draft European
Directive on the protection in the European Union of whistleblowers in the public
and private sectors8 has been elaborated and published in May 2016, which is still
to be considered by the Commission and flow through the formal adoption
procedure.
Romania has adopted specific legislation to protect whistleblowers since 2004,
thus being the first country in the continental Europe to have a dedicated and
comprehensive such law.
Romanian Legal Framework for Whistleblowing
As mentioned above, Romania has adopted a specific legislation on
whistleblowing since December 20049, almost at the same time that it ratified the
UN Convention against Corruption that stipulates the mechanism.
The law, as most of the existing legislation indicated above, provides mainly
for protection mechanisms for the whistleblowers, while the managerial and risk
preventive perspectives are less approached. However, the law empowers and
requests each public institution to set up its own internal channel to receive public
interest disclosures and also set its internal procedure to handle them. The term for
transposing the primary legislation was 30 days after its adoption. Unfortunately,
most of the transposition consisted only in including the name of the law into the
list of legal framework applicable to different public institutions.
The National Anticorruption Strategy 2011-2015 included one objective
regarding the implementation of whistleblowing mechanisms, including reporting
6 Recommendation No. 7 from 2014, http://www.coe.int/t/dghl/standardsetting/cdcj/
CDCJ%20Recommendations/CMRec%282014%297E.pdf
7 Recommendation No. 2073 (2015) on whistleblowers protection improvement,
http://semantic-pace.net/tools/pdf.aspx?doc=aHR0cDovL2Fzc2VtYmx5LmNvZS5pbnQvbncveG1s
L1hSZWYvWDJILURXLWV4dHIuYXNwP2ZpbGVpZD0yMTkzNiZsYW5nPUVO&xsl=aHR0cDovL
3NlbWFudGljcGFjZS5uZXQvWHNsdC9QZGYvWFJlZi1XRC1BVC1YTUwyUERGLnhzbA==&xsltpa
rams=ZmlsZWlkPTIxOTM2.
8 http://www.greens-efa.eu/the-right-to-speak-out-15199.html; http://www.greens-efa.eu/
fileadmin/dam/Images/Transparency_campaign/WB_directive_draft_for_consultatio n_launch_Ma
y_2016.pdf.
9 Law no. 571/2004 on whistleblowers protection.
Receiving and solving public interest disclosures… 175
on the disclosures received, but the results were not satisfactory, in many public
institutions still lucking the necessary awareness on whistleblowing and its
respective mechanisms.
However, it was over the last two years that several pieces of legislation have
been correlated such as to provide a more comprehensive framework to set up
specific public disclosure instruments and mechanisms.
In this context, in 2015 a new piece of legislation has been adopted regarding
the internal managerial control. The Order no. 400 provides for 16 standards that
need to be observed by each public institution, which are subject to be controlled.
In order to make effective the internal managerial control, operational procedures
shall be developed by each institution, for each standard, according to its specific
activity profile.
These operational procedures shall be developed by a specific commission set
by the manager of the institution, following a similar format with the ones
developed under the ISO 9001:2015 quality management standardization. One
such required procedure under Standards 1: Ethics and Integrity - is precisely the
one on whistleblowing. While Law no. 571 provides for protection mechanism,
Order no. 400 is mostly focused on setting adequate communication procedures
such as to enable employees to disclose any irregularity. Both the law and the
order are applicable to all public institutions and companies.
Furthermore, a new National Anticorruption Strategy has been adopted in
August 201610, which includes a specific objective - no. 2.2 on improving the
effectiveness of the anticorruption preventive measures through closing the legislative gaps
and inconsistencies regarding the ethical advisor, the protection of whistleblowers and the
revolving-doors.
To strengthen the power of the above-mentioned objective, Romania has also
committed, at the Anti-corruption London Summit, in May 2016, to revise and
improve the implementation mechanisms for the protection of whistle-blowers11.
Thus, both the legal framework and the decision-making will have been put
publicly so that whistleblowing mechanisms can be properly implemented in the
public sector.
The Legal Nature of the Whistleblowing
According to article 3 of the law no. 571/2004, the public interest disclosure, or
whistleblowing, is the disclosure or complaint made in good faith, regarding any fact or act
that entails a break of the law, of the professional deontology or of the principles of good
administration, efficiency, efficacy, economy and transparency. Whistleblower is a
person employed in a public institution or authority, submitting a public interest
disclosure.
10 Government Decision no. 583/2016.
11 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/522726/
Romania.pdf.
176 EMIL BĂLAN, IULIANA COŞPĂNARU
According to article 2 of the Government Ordinance no. 27/200212, petition is
the request, complaint, disclosure or suggestion, submitted in writing or via e-mail, by a
citizen or a legally organized civil society organization, to a public institution o authority,
central or local.
While analysing the two legal provisions, it should be noted there are no
particular differences between the two definitions, except for the quality of the
complainant – which in the first case is a qualified subject: an employee of the
public institution, while in the second case the complainant is a citizen, which does
not exclude in itself the possibility for that citizen to be precisely an employee of
that public institution.
Thus, one can conclude that whistleblowing is a particular case of petition,
submitted by an employee of a certain institution, in which case all provisions and
rules applicable to petitions also apply to whistleblowings. Also we can conclude
that law no. 571/2004 is a special law in comparison with Government Ordinance
no. 27/2002, which entails that the first will have pre-eminence over the second, in
case of conflict.
In practice, two special situations need closer attention and analysis. One
regards the situation in which the whistleblower does not disclose his identity, in
which case, according to art. 7 from the GO no. 27/2002, the complaint should be
dismissed.
In this particular case, the authors’ opinion is that whistleblowing mechanisms
have two major roles. One is to provide employees with a secure communication
channel where they can disclose in good faith any threat to the public interest they
might come across with in their professional activity, thus playing the role of a
protection mechanism for the public interest. The second one is to provide
employees with protection means and mechanism against retaliation for the
disclosure made. If the focus is on protecting public interest, meaning the
managerial perspective, then, even if the disclosure can`t be treated as a petition, it
still can meet its objective if used as a basis for self-investigation and risk
mitigation. In this case special procedures shall be in place to allow the public
institution investigate the situation disclosed and take the necessary measures to
prevent eventual risks. To this end, special procedures can be drawn under the
application of Order no. 400/2015 regarding internal managerial control. From the
legal perspective, the situation analyzed above will not be qualified as petition.
The second situation regards the case when the complaint is a whistleblowing
and the whistleblower requests an answer to his disclosure. There have been
situations in practice when such request created confusion, as public institution
representatives did not know how to legally qualify it, having in mind the fact that
Law no. 571/2004 has no specific provisions on this matter.
12 On regulating the activity of petitions solving.
Receiving and solving public interest disclosures… 177
The situation becomes even more complicated when the respective institution
has already in place a special procedure and dedicated channels to receive
whistleblowings, and such disclosure is received through a different channel. For
instance, there is a web platform set to submit/ receive whistleblowings, and such
disclosure is received by the public relations department of a public institution.
It should be noted in this case, that the legal nature of the public interest
disclosure is not given by the channel it is received, but by its content and the
quality of the complainant. Namely, if the disclosure regards a situation that my
harm or threaten the public interest and is made by an employee of that institution,
then it will always be a whistleblowing, and will be treated as such, receiving the
adequate protection.
This interpretation is consistent with the wide range of institutions that can
receive whistleblowings according to art. 6 of the Law no. 571/2004. According to
the spirit of the law, whistleblowing can be submitted to any institution and, if in
good faith, it entitles the complainant to receive adequate protection since the very
first complaint, irrespective to which institution he/ she submitted it.
Therefore, in this case, the Law no. 571/2004 will prevail with regard to the
nature of the complaint, while with regard to the answer requested, shall be
applied provisions of art. 6 or 61 of GO no. 27/2002, which state petitions shall be
answered by the competent departments of the public institution or reverted to
such competent institution. According to art. 8 of the same GO, public institutions
shall answer any petition, irrespective the nature of the answer, within 30 days
from the date it was registered by the competent institution.
Legal provisions on petitions reporting are also applicable in case of
whistleblowings. Furthermore, they should be coordinated with provisions of the
Government Decision no. 583/2016 regarding the National Anticorruption
Strategy that requests public institutions to report on integrity incidents, public
interest disclosures consisting the basis for identifying such integrity incidents.
Last but not the least, we should consider for adequate analysis, provisions of
Law no. 50/200713, which explicitly state that provisions on whistleblowers`
protection shall prevail over the confidentiality obligations set by the ethical code,
while public institutions shall report on the ethical incidents annually.
The same law provides the obligation for managers of public institutions to
appoint an ethical advisor among the employees of the human resources
department, whose role is to advise and assist public servants from that institution
regarding the observance of the provisions of the code of conduct. The same law provides
that public servants can`t be sanctioned nor retaliated for disclosing in good faith to the
competent disciplinary commission breaches to the ethical code.
Last but not the least, it should be mentioned that reporting on
whistleblowings shall be made regularly available both to the public and
13 To amend Law no. 7/2004 regarding the ethical code for public servants.
178 EMIL BĂLAN, IULIANA COŞPĂNARU
internally, in order to meet the preventive role of the mechanism and raise
awareness of the public employees on risks and mitigation measures adopted.
Recommendations on Elements of an Operation Procedure to Receive and
Solve Whistleblowings
As demonstrated above, whistleblowings are petitions subject to a specific
regime, where protection against retaliation shall be granted to the complainant.
To set a functional whistleblowing system for a public institution, several
conditions need to be considered. The first one is to incorporate such a system into
an operational procedure as prescribed by the Order no. 400/2015.
Such procedure shall include provisions on the dedicated channels set by the
institution to receive public interest disclosures or whistleblowers. Such channels
can include:
A dedicated whistleblowing line of a public institution (letter, e-mail, web
platform, phone);
The public relations department
The ethical advisor
The internal Audit department
The disciplinary committee
The supervisor of the person against whom the complaint is submitted
The chief of the institution
The supervisory body of the institution (if the case)
Or a third party authorized by the institution to receive the complaints
Irrespective of the channel used to submit such public interest disclosure, even
if it is a different department or channel than the above-mentioned, it shall be
directed to the ethical advisor, who shall be in charge of anonymizing the
complaint in order to grant the adequate protection to whistleblower. This
procedure shall be applicable also in case the disclosure is received by the public
relations department.
Such competence can be established for the ethical advisor based on the
administrative decision he/ she is appointed to this position, according to the legal
provisions of Law no. 50/2007. The ethical advisor shall be under the direct
coordination of the manager of the institution, in order to avoid double
subordination and confusion about the prevalence of the tasks. This position also
entitles the ethical advisor to offer assistance and advise, as well as coordinate the
interaction between the different departments of the public institution.
The complaint thus anonymized can be sent to the competent department for
appropriate investigation. The authors` recommendation would be to send the
disclosure to the internal audit department, also set as an independent structure
under the direct supervision of the manager of the institution, as long as it exerts
the internal managerial control.
Receiving and solving public interest disclosures… 179
Once the disclosure is investigated and conclusions are drawn, it shall be
directed to the disciplinary commission, if disciplinary sanctions are to be applied.
In this case, the identity of the whistleblower shall be further protected. The
disclosure shall also be directed to the special structure set based on art. 3 of the
Order no. 400/2015, appointed to monitor, coordinate and advise the
implementation and development of the internal managerial control.
It should be mentioned that such structure can be created even as part of the
internal audit department, as long as the monitoring, coordination and advise
functions are separated from the audit in itself, as according to the international
standards for auditing, no auditor can rule and audit the effectiveness of his ruling.
The structure thus established has the role of analysing the complaint from the
risk management perspective and incorporate any mitigation measures into the
existing operational procedures, up-dating or adjusting them, as part of the
monitoring, coordination and advise on their implementation.
Once the public interest disclosure is solved, solution shall be communicated
to the complainant via the public relations department. For this to be possible, the
answer shall return to the ethical advisor, who has protected the identity of the
complainant, in order to correlate the complaint with the answer. Once this last
step is finalized, the petition can be answered to the complainant.
Solutions and mitigation strategies adopted shall be communicated regularly
both externally, as part of the reporting obligation, and internally to support the
continuous learning process and raise awareness on existing risks, integrity
incidents and measures adopted.
If the complaint has been submitted anonymously and used as a basis for
self-investigation and risk mitigation, similar reporting shall be communicated
regularly both externally and internally, in order to encourage further
whistleblowers to take action and stand up to protect public interest against
actions that may harm or threaten it.
The above-mentioned elements have been drawn to complement the existing
legislation and to detail and further facilitate the application of the
recommendations set in our previous paper, “Disclosure mechanisms for
non-compliance with the general principles of administrative procedural law. The
whistleblowing” as well as to substantiate the objective assumed through the
National Anticorruption Strategy and indicate the benchmarks for the secondary
and tertiary legislation in the field.