In a major victory for employees at the United Nations, the UN Dispute Tribunal (UNDT) has found that the office charged with reviewing retaliation complaints and safeguarding the interests of UN whistleblowers failed to conduct a proper review of a whistleblower case.
In a June 21 judgment by UNDT – the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – Judge Goolam Meeran sided with whistleblower James Wasserstrom, a former employee of the UN Interim Administration Mission in Kosovo (UNMIK). Wasserstrom was allegedly retaliated against after reporting to UN investigators a possible kickback scheme involving local politicians and senior UNMIK officials related to a controversial new power plant and mine known as Kosovo C. (Incidentally, this decision is a good read for those who are interested in this multibillion euro project supported by the World Bank, as it details potential kickbacks and corruption, and states that at one point the World Bank “tried to walk away from the project.”)
When it reviewed Wasserstrom’s retaliation complaint, the UN Ethics Office found that there was a prima facie case of retaliation, meaning that the case passed its initial burden of proof hurdle and proceeded to the next stage. In accordance with the UN Secretariat’s whistleblower protection policy, an investigation was then conducted by the Office of Internal Oversight Services (OIOS). The Ethics Office, based solely on the body of the OIOS report (it didn’t bother to read the Annexes), subsequently decided that Wasserstrom was not retaliated against.
Fortunately, Judge Meeran found that the Office misapplied the burden of proof in making this determination. According to the judge, at that stage in the process, the burden rested not with the Applicant but with the Administration, which was required to prove by clear and convincing evidence that it would have taken the same action absent the whistleblowing. He found that this burden was misapplied because “before dismissing the Applicant’s complaint, the Ethics Office should have ensured that clear and convincing evidence actually existed … The Ethics Office merely adopted the Investigation Report and recommendations of ID/OIOS and appears to have abrogated its responsibility to address the correct legal test.” (para. 38)
This decision could have a major impact on other UN whistleblowers. GAP knows of two other cases in which the burden of proof was unequivocally misapplied in the same way, and there are likely more given the poor record of the Ethics Office. As GAP mentioned in recent stories in The Guardian and Al Jazeera, the Ethics Office has a horrendous record of substantiating retaliation.
According to the UN Ethics Office’s annual Activities Reports (for 2006,
2007,
2008,
2009,
2010 and
2011) approximately 297 retaliation complaints have been received since the Office’s launch in 2006. It appears that the Ethics Office found a prima facie case of retaliation – as it did in Wasserstrom’s case – in approximately 2.7% of these cases. (According to the Ethics Office, not all of the 297 complaints received were whistleblower cases. Also, in some of the cases in which the Office did not find retaliation, it issued advice or referred the employee to a different office.) But after a subsequent investigation by OIOS, the Ethics Office apparently only substantiated retaliation and recommended relief in one case.
This decision is especially helpful for the handful of whistleblowers who received a prima faciedetermination of retaliation but who were not ultimately vindicated by an OIOS investigation, as the judgment finds that the Ethics Office’s duty is not to simply “rubberstamp the Investigation Report and recommendation by OIOS, but to carry out an independent review of the Report.” (para. 30) This decision could result in some of these whistleblowers receiving relief before the Tribunal.
In Wasserstrom’s case, the parties will settle the issue of remedy or, if they are unable to reach an agreement, the Tribunal will hold a hearing in October. It is also possible that one or both parties will appeal this decision to the UN Appeals Tribunal or that the Secretary-General will renew his insidious efforts to revise UNDT’s Statute so that decisions made by the UN Ethics Office could no longer be reviewed by the Tribunal.
But in the meantime, the Wasserstrom decision sends a message to the Ethics Office that the judges in the new system are monitoring it and that they will not tolerate failures to properly apply the UN whistleblower protection policy. Let’s hope that this increased oversight results in the Ethics Office protecting more whistleblowers, and in it reopening cases in which it misapplied the burden of proof.
Shelley Walden is International Officer for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.