On Friday, September 29, the World Intellectual Property Organization (WIPO) issued a new policy to protect its whistleblowers: Office Instruction N° 33/2017.
The Government Accountability Project (GAP), which represented two whistleblowers for many years at the UN agency, was discouraged to note that the new policy is marred by the same fatal flaw as the current practices: whistleblowers have no access to an independent review of their appeals for relief from retaliation.
Here’s how this works. Both WIPO whistleblowers whom GAP represented alleged misconduct on the part of the Director General (DG) at WIPO, Francis Gurry. But Gurry, as DG, was the final arbiter in both their cases. He was both the defendant and the judge. Among other things, the whistleblowers alleged that Gurry steered a pricey WIPO contract to an acquaintance. Both whistleblowers suffered serious retaliation. One left WIPO because his term expired, but WIPO put him under investigation anyway. The other resigned months before her contract expired to take a lower-level post in another agency because Gurry made it impossible for her to continue working for him. In front of witnesses, Gurry told her that he would not renew her contract because he considered her “disloyal.”
One misconduct allegation stalled for lack of cooperation with UN investigators, but even so, the investigators were able to substantiate the procurement fraud allegation. Gurry, the judge in the case, decided that Gurry, the defendant, had simply made a managerial mistake and that no discipline was appropriate. Gurry remains the DG at WIPO because he was able to control the entire process.
Now the new policy appears. Not only does it fail to resolve this history of retaliation (or even mention pending cases), but the DG remains in control as the ultimate decision-maker when a whistleblower seeks protection from retaliation. The Ethics Office reviews the cases, and makes a recommendation to the DG:
If retaliation is established, the Director General may, based on the recommendation of the Ethics Office, or on his own accord, take appropriate measures aimed at correcting negative consequences suffered as a result of the retaliatory action (paragraph 28).
But the new policy adds a wrinkle: it provides for a situation in which the Director General has a conflict of interest, as Gurry had previously. When the DG is the subject of the misconduct allegations, he will name someone who works for him to decide the case.
In case the Director General has a potential, perceived or real conflict of interest preventing the exercise of his or her functions under this Policy in a particular matter, he or she shall recuse him/herself therefrom, and designate another appropriate WIPO staff member to act in his or her stead (paragraph 31).
But the DG clearly has the ability to influence “another appropriate WIPO staff member” (whom he appoints) because all WIPO staff members work for him and are subject to his authority. So, under the new policy, if the DG has a conflict of interest, he will appoint someone else he can control.
This sort of bureaucratic nonsense makes people tired. It’s so transparently pointless that the Staff Council of the WIPO Staff Association wondered if “such efforts were merely window-dressing to mask over serious issues in WIPO concerning whistleblower protection.”
Well, yes, they are. The new policy is designed to appear to address the problems that occurred when the DG was able to manipulate the adjudication of serious offenses involving him. The problem with this bogus protection is that it cripples the entire agency. It leaves a senior manager undisciplined for procurement “irregularities” and it shows staff members that they expose misconduct at their own peril. No one at WIPO has the independent authority needed to protect them.
For the past three years, the US government has refused to disburse its full annual contribution to WIPO because whistleblower protections are inadequate there. The US government values this protection because auditors and investigators report that whistleblowers are responsible for more information about fraud and abuse than all other sources combined.
In the UN system, officials are not subject to the laws or the law enforcement of Member States. The only justice system they recognize is internal to the Organization. If whistleblowers can be silenced for fear of retaliation, there is no independent voice that speaks in the public interest to expose corruption and misconduct.