Tuesday, July 5, 2011

At World Bank, Confidentiality Can Be Used To Conceal Misconduct


by Bea Edwards on July 01, 2011 ( The Whistleblogger / 2010 )

In a troubling development, a ruling handed down this month by the World Bank Administrative Tribunal held Bank management responsible for breaches of confidentiality, even when the "confidences" exposed revealed serious misconduct. The case, which echoes an earlier ruling, involved facts (revealed to the press and published) about a staff member and his corrupt business relationships, as well as a concealed conflict of interest.

In this recent decision, No. 451 , the Tribunal reviewed the case of Ben Hu, a former World Bank short-term consultant. Hu served on the board of directors of the now-debarred Bank IT vendor Megasoft while simultaneously working for the Bank itself. Hu facilitated contracts for Megasoft, including numerous sole-source contracts and one competitively bid contract, over a short period of time. Taken together, the contracts were worth approximately $2 million.

In 2005 and 2006, Hu was investigated by the Bank for these activities.

In 2008, the Vice President for Human Resources notified Hu that the Bank found him guilty of misconduct as a result of his conflict of interest and his concealing of it:

The Final Report of investigation concluded that there was sufficient evidence to indicate that you committed staff misconduct in that you abused your position for financial and personal gain, that you engaged in conflicts of interest, and that you failed to make necessary disclosures, in violation of your duties to the Bank and applicable Staff Rules, in violation of Staff Principle 3 and in violation of Staff Rule 8.01.

After carefully reviewing the Final Report, including your testimony and written comments, I have concluded that your not disclosing your Board membership with [Company X (India)] to your manager, [ISGVP], constituted misconduct as it violated your obligation to avoid an actual conflict of interest or appearance of a conflict of interest in accordance with Staff Rule 3.01 Standards of Professional Conduct. I found that the evidence was not sufficient to substantiate the other allegations.

In October 2008, news of the Hu investigation leaked to journalist Richard Behar, whose story was published at Fox News. During its May 2011 session, the Administrative Tribunal at the Bank held Bank management responsible for the leak, and ordered payment to Hu in the amount of $25,000.

In its March 2009 session, the Tribunal issued a similar ruling in a related case. In Case No. 389, Mohammad Muhsin, a senior manager, who was accused and found guilty of misconduct related to a similar conflict of interest, was also awarded $25,000 in damages, after news of his investigation leaked to the Washington Post and US News and World Report. In the Muhsin case, the tribunal even acknowledged the counter-argument about the leaks, when it wrote:

The importance of the vigorous and constant effort to eliminate corruption within international organizations can hardly be overemphasized. Yet this cannot be invoked as a laissez-passer to excuse disregard for the interests of staff members, and in particular their rights to due process. It is true in this case that the Applicant was guilty of misconduct. It might therefore be said that he deserved what he got, and must live with the consequences of his actions.

Nonetheless, the Tribunal wrote, at the time of the leaks to the press, a finding of misconduct had not yet been established and therefore Muhsin was entitled to monetary damages.

This logic is tortured. Although the finding of misconduct had not yet been established, the guilty party knewat the time the press accounts appeared that the allegations were true. The guilty party then initiated the action requesting damages. Both Muhsin and Hu, therefore argued that they have a right to protection and confidentiality concerning their actions, even when their actions were corrupt.

In these judgments, the World Bank Administrative Tribunal, does not seem to consider the free speech rights of other staff members, who disclosed corruption at the bank to the public. Only the rights of staff members guilty of misconduct, have been acknowledged. Nor do the rulings respect the public interest. The Tribunal should consider that there is a balance to be struck between an individual's right to privacy and the public interest. In the context surrounding these two cases, it emerged that all three of the bank's principal IT vendors had been debarred for corruption, involving at least one of the characters to whom the AT has now awarded substantial damages.

As an organization that defends and protects the rights of whistleblowers, GAP strenuously advocates the rights of free speech, and believes that the public interest and the right to freedom of expression trump the ability of a guilty party to use confidentiality to conceal wrongdoing. To construe confidentiality as a shield for misconduct and reward those who presume to use it that way with financial damages is deeply disturbing.

Bea Edwards Is the International Program Director of the Government Accountability Project, the nation's leading whistleblower advocacy organization.

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