Whistleblowing Recipients
Richard Moberly
Associate Dean for Faculty
Professor of Law
Board of Directors
✔
✖
Government Regulators
✔
✖
The Press
✔
✖
Recipients Matter
No Easy Answers
TWO GOALS:
Stop the Misconduct
Protect Against Retaliation
1. Who Are the Recipients?
2. Whistleblowing Models
3. Best Practices
1. Who are the Recipients?
Three Tiers:
• Internal
• External Regulators
• Public
Internal Recipients
External Regulators
The Public
2. Whistleblowing Models
• Antiretaliation Model
• Structural Model
• Bounty Model
Recipients and the
Antiretaliation Model
Sarbanes-Oxley (U.S.): Can report to
(A) a Federal regulatory or law enforcement
agency;
(B) any Member of Congress or any committee
of Congress; or
(C) a person with supervisory authority over the
employee (or such other person working for the
employer who has the authority to investigate,
discover, or terminate misconduct)
Recipients and the
Antiretaliation Model
Public Interest Disclosure Act (U.K.):
1. Internal disclosure to manager or director –
reasonable belief misconduct occurred
2. External disclosure to specified regulators – above
+ allegations are substantially true and relevant to
regulator
3. Wider disclosure to police; media; etc. – above +
reasonable in all the circumstances and not made for
personal gain + must fall within one of four
circumstances
Recipients and the Structural
Model
Inspector General Act (U.S.)
• Each federal agency has an Inspector General
office that will receive complaints and
investigate alleged misconduct
Public Interest Disclosure Act (Australia)
• Detailed requirements for receiving and
responding to internal disclosures
• Oversight by Commonwealth Ombudsmen
Recipients and the Bounty
Model
False Claims Act (U.S.)
• Fraud against the government
• Report to the Department of Justice
Dodd-Frank Act (U.S.)
• Securities fraud in the private sector
• Report to the SEC Office of the Whistleblower
IRS Whistleblower Program (U.S.)
• Tax fraud
• Report to the Internal Revenue Service
Some Lessons from the
Whistleblowing Models
3. Best Practices
Internal
External
Regulator
Public
Where Do Whistleblowers
Actually Report?
Ethics Resources Center (U.S. private employees 2013):
• First Complaint is Internal
92%
• Supervisor
82%
• Higher Management
52%
• Hotline
16%
• Government / Regulatory
09%
Merit Systems Protection Board (U.S. federal gov’t 2010)
• Internal
89%
• External Regulator
06%
Where Do Whistleblowers
Actually Report?
Whistling While They Work (Australian gov’t employees 2008)
• Internal only
90%
• Supervisor
66%
• External “watchdog” agency
04%
Public Concern at Work (U.K. study of PIDA claimants from
2011-2013)
• First report is internal
91%
• Manager
73%
• Senior Management/Executive
17%
• Only report internally
81%
• First report external
02%
Essential Elements
• Protector Action
• Identify a Wide Range of Potential Recipients
•
•
•
•
Anonymity and Confidentiality
Reporting Back to Whistleblowers
Transparency and Accountability
Providing Independent Advice to
Whistleblowers
• Impact of History, Culture, and Political
System
Seek the truth,
hear the truth,
learn the truth,
speak the truth,
hold the truth, and
defend the truth unto death.
-Jan Hus
Recipients Matter
No Easy Answers
Whistleblowing Recipients
Richard Moberly
Associate Dean for Faculty
Professor of Law