Thursday, August 2, 2012

UN-JUSTICE: Failure of leadership in protecting whistleblowers at the United Nations has led to a request for disciplinary action against the head of the UN Ethics Office

2 August 2012

The persistent requests for an effective implementation of the UN whistleblowing policy could face more protests unless appropriate attention is paid in high places to the needs of those who “risk their jobs, professional lives and livelihood by courageously seeking to expose wrong-doings within the Organization” -to use the words of the recent UNDT ruling in the case of Ms. Vesna Dzuverovic (UNDT/2012/105).

Despite increasing efforts to tackle the problem and growing public outrage, UN whistleblowers continue to claim retaliation and that their rights are not being protected by UN appropriate authorities. 

Last month the UNDT found that Mr. Robert Benson, the former Director of the UN Ethics Office, had failed to meet his obligations with regard to Mr. James Wasserstrom, an American diplomat and former UN staffer who had been illegally arrested for reporting possible corruption within the UNMIK (UNDT/2012/092). 

Now, in an application under consideration before the UNDT filed by Dr. Walter Gehr -the esteemed lawyer and former UNODC staffer whose contract was not renewed after his complaints of misconduct against UNODC management, the UN court has been requested for the first time “to refer [the current Director of the UN Ethics Office] Ms. Joan Elise Dubinsky to the Secretary-General of the United Nations for possible action to enforce accountability pursuant to Article 10.8 of the UNDT’s Statute”, because “she allows this Office to be dysfunctional”, he argues.

However, legal documents before the internal UN court reveal that lawyers representing the Secretary-General are attempting to convince the judge that, similarly like in the case of Mr. Wasserstom, Dr. Gehr’s complaint of retaliation falls outside the jurisdiction of the UNDT because “as the Secretary-General does not have effective control over the Ethics Office, the actions or omissions of the Ethics Office cannot be attributed to the Organization” -an interpretation that is contrary to a prior UNDT ruling  which found that when a claim relates to issues covered by the UN Secretariat’s whistleblower protection policy “a staff member is entitled to certain administrative procedures and that if he or she is dissatisfied with the outcome, he or she may request judicial review of the administrative decisions taken” (UNDT/2011/063).

According to UN lawyers, the UN Ethics Office was established by the Secretary-General pursuant to actions by the General Assembly which called for the Office’s independence, therefore it is the General Assembly who endorsed the responsibilities for preserving and strengthen the work of the Ethics Office, “if there is indeed a lacuna in this respect, then it is for the General Assembly to address this matter”, they write. 
For the records, it took 10 months for the Ethics Office to dismiss Dr. Gehr’s complaint of retaliation through a decision which it transmitted two weeks after Dr. Gehr sued the Secretary-General before the UNDT because of the Ethics Office’s lack of action (UNDT/2012/069). According to the UN whistleblowing policy, the Ethics Office should have completed the preliminary review of a complaint of retaliation within 45 days of receiving the complaint -the UN lawyers have told the UNDT that the 45 days rule should be considered only as “an aspirational requirement.”

They further dismiss the statistics on UN whistleblowing policy by the GAP -the US's leading whistleblower protection and advocacy organization, used by Dr. Gehr to tell the court that the UN Ethics Office’s record of protecting UN whistleblowers from retaliation is abysmal by saying that “Gap allegation that the Ethics Office lacks credible record of protecting whistleblowers are entirely incorrect and unfounded.
With a view to clarify this important issue, we have asked for a comment from Ms. Shelley Walden, International Program Officer at the Government Accountability Project. She has kindly provided us with a detailed response which we are publishing here below in the hope that no others UN whistleblowers will be paying the price for an "independent" UN Ethics Office.
From: Shelley Walden, The Government Accountability Project (GAP)
To: UNJustice
                                                                             1 August 2012  
Dear UNJustice,
Thank you for contacting the Government Accountability Project (GAP) and for giving us a chance to reply to the statement made by the UN’s lawyers regarding the record of the UN Ethics Office (in paragraphs 20-23 of the Respondent’s Reply in Walter Gehr v. Secretary-General of the United Nations). We appreciate the opportunity to double check our numbers and clarify the discrepancies. 

Let me explain how GAP arrived at these statistics and where the discrepancies between our numbers and the UN lawyers’ lie. In our initial blog on this issue (which has since been revised) we stated that “According to Ethics Office reports to the Secretary-General, from August 1, 2007 to July 31, 2010, a prima facie case of retaliation was found in 1.5% of the requests for protection from retaliation received by the Office (2 of 134 cases).” This was before we located the 2006, 2007 or 2011 Ethics Office reports, so it only uses statistics from the 2008, 2009 and 2010 reports.  Our analysis was limited to those reports because they were the only ones that we were able to locate at that time (we’ve since located all of them and have started quoting a new statistic incorporating every annual report).

Here is how we arrived at our initial numbers mentioned in the Respondent’s Reply:
  • ·     According to paragraphs 48 of the 2008 report, “From 1 August 2007 to 31 July 2008, the Ethics Office received 45 complaints of retaliation” and found 0 prima facie cases. According to paragraph 52 of that report, the two prima facie cases from 2007 were not substantiated by OIOS, so retaliation was ultimately not found. We did not count those two cases, as the prima facie determination was made during a previous reporting cycle (the 2007 report, which we had not yet located) and would have been counted in the 2007 report.
  •       According to paragraph 60 of the 2009 report, 64 requests were received. Paragraph 62 says that 0 prima facie cases were found, but paragraph 65 says that one was found from the cases left over from the previous cycle.  
  •       According to paragraph 33 of the 2010 report, “from 1 August 2009 to 31 July 2010, the Ethics Office received 36 requests related to protection against retaliation.” According to paragraph 35, it found 0 prima facie case in these new cases, but according to paragraph 37 it found one prima facie case from the leftover cases from the previous cycle.”
GAP unfortunately did make an error, as there were 145 requests for protection against retaliation during this time, not 134. We would like to apologize to Mr. Gehr and other whistleblowers for this mistake. But, the mistake was ironically in the Ethics Office’s favor. So, the number should be 2 prima facie cases out of 145 complaints of retaliation, which is an even worse record for the Ethics Office (1.4%). This number has been corrected on our website (although for GAP’s 2012 blog entries, we use a new statistic that incorporates all annual Ethics Office reports). 

Now, in paragraph 22 the UN lawyers distort this statistic because for some reason they decided to add 2011, even though that was clearly not included in GAP’s statistic. So they added another 55 cases (see para. 26 of the 2011 Ethics Office report) and made it seem like those should have been included in GAP’s statistic, even though ours focused on a different time period as we had not yet located the relevant report. We believe that the reason that they included the 2011 report was because in that year, the Ethics Office found 3 prima facie cases of retaliation (1 in para. 26 and 2 in para.28), so they can now claim in paragraph 23 of the reply that they have found 5 prima facie cases.

Since GAP now has all of the Ethics Office reports, we have recently added in the 2006, 2007 and 2011 numbers and have started using this broader statistic in our correspondence. According to paragraph 54 of the 2007 report, the Ethics Office received 52 complaints of retaliation and found 2 prima facie cases of retaliation. According to paragraph 45 of the 2006 report, the Ethics Office received 45 complaints of retaliation and found 1 prima facie case. If you add in the 2011 numbers and our previous statistic, this brings the total number of complaints to 297 and the total number of prima facie cases to 8 or approximately 2.7% of retaliation complaints

GAP’s numbers are based on retaliation complaints received. We did not subtract those cases that were withdrawn, involved advice or were outside the mandate of the Office. One reason for this is because we have been informed by some whistleblowers that the Ethics Office advised them to drop their cases, so we think that those numbers should be included in the overall statistic. Another reason is that there has been some confusion over the years regarding what the actual mandate of the UN Ethics Office is. For example, in 2007 the Ethics Office considered some cases from the funds and programmes, which it no longer does (provided that those funds have an Ethics Office). Finally, we wanted to have an overall picture of how many complaints the Ethics Office receives and how many of those inquiries ultimately result in a whistleblower receiving relief.  

The really interesting thing to look at is what happened to those 8 prima facie cases. After all, a prima facie decision is meaningless if retaliation is not ultimately substantiated after the OIOS investigation and the whistleblower is not protected. Some of the reports clearly say that certain cases weren’t substantiated, though some are a little vaguer. Only once does a report say that retaliation was ultimately substantiated and that the Office “issued recommendations pertaining to disciplinary actions and corrective measures to the Executive Office of the Secretary-General and the Department of Management, pursuant to ST/SGB/2005/21.” (see paragraph 31 of the 2011 report). So, it appears that of the 297 requests related to protection against retaliation received by the Ethics Office since its launch in 2006, only one resulted in the Ethics Office ultimately substantiating retaliation and recommending relief. But even that one whistleblower has not yet been completely protected from retaliation.

Related information:
Urgent Appeal, UNODC: Dr. Walter Gehr (10 December 2011

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