Masters level forumThe ethics of dissent can’t be discussed without introducing you to Rosemary O’Leary. She wrote the book “The Ethics of Dissent: Managing Guerilla Government.” Please view h
PADM505 | LESSON 8: ETHICS OF DISSENT
Introduction
Topics to be covered:
Whistleblowers
Ethics of Dissent
All government employees, from the President of the United States down to the lowest level public administrator in a local government, are accountable to the citizens they serve, and they have a responsibility to conduct governmental affairs in a manner that meets citizens’ expectations. This includes performing their work in a manner that is transparent and accountable. There may come a time when a public administrator will need to oppose those in power to do that.
Bob Woodward or “Deep throat” comes to mind when we think of individuals who “blew the whistle” on their governmental agency. Daniel Ellsberg leaked the Pentagon Papers. There have been more in recent years such as Bradley Manning and Edward Snowden.
Whistleblowers
STEPS TO TAKE If an individual feels that he or she should become a whistleblower, the National Whistleblower Center (NWC) provides information and resources on the process. If someone decides to pursue whistleblowing, some of the steps he or she should take include the following:
Check legal guidelines for whistleblowing. For example, the Occupational Safety and Health Administration (OSHA) has guidelines that should be followed in the process.
Gather information and evidence to document the wrongdoing that the whistleblower is reporting.
Hire an attorney experienced in whistleblowing cases to offer support and guidance in the process. Work with that attorney to build a case.
Legally, whistleblowers have the right to remain anonymous. But in reality, whistleblowers are often identified, even if they take actions intended to maintain their anonymity. As such, whistleblowers should prepare for the backlash that may occur if others find out that they reported wrongdoing. As part of this preparation, whistleblowers should consider getting another job. If they do this, they should change jobs before their case becomes public.
LEGAL RIGHTS AND RETALIATION Whistleblowing is a legal right, and whistleblowers at the federal level of government are protected by law under the Whistleblower Protection Act of 1989. If an employer retaliates against an employee or other individual for being a whistleblower, that person can file a complaint. Some of the laws that include protection for whistleblowers include the following (United States Department of Labor, n.d.):
Clean Air Act
Comprehensive Environmental Response, Compensation and Liability Act
Consumer Financial Protection Act
Energy Reorganization Act
Federal Railroad Safety Act
National Transit Systems Security Act
Surface Transportation Assistance Act
Sarbanes-Oxley Act
Toxic Substances Control Act
Be sure to explore the statutes that govern the procedure for whistleblower protection.
In addition to federal laws, many states also have laws that offer protections to government employees who become whistleblowers. According to the NCSL’s website, the states that have such laws include Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Washington, and West Virginia. Generally, these laws prohibit retaliation against employees and others who become whistleblowers, and they impose fines and other sanctions against anyone who engages in retaliation.
Many local governments also include legal protections for whistleblowers. For example, in Miami-Dade County, Florida, individuals who become whistleblowers and experience retaliation can file a complaint with the county’ Ethics Commission. If the Commission determines that retaliation has occurred, this will be regarded as a violation of the county’s Conflict of Interest Ordinance (Commission on Ethics and Public Trust, Miami-Dade County, n.d.). Retaliation occurs when someone takes action to seek revenge against another person who has aggrieved them in some way. Some common methods of retaliation against government employees who become whistleblowers include salary reductions, demotions, and suspensions.
WHISTLEBLOWERS Thus far, this course has recommended that to ensure public administrators are ethical, governments at all levels need to hire ethical employees, have leaders who practice ethical leadership, establish ethical organizational cultures, and have guidance for ethical behavior in laws and other directives, including codes of ethics.
There is another way to promote ethical behavior among public administrators: whistleblowing. A whistleblower is someone who notifies authorities to report activities in the workplace that are illegal, unethical, or wrong for some other reason. Whistleblowers exist in both the public and private sectors. Public administrators at all levels of government have the option of becoming whistleblowers if they feel a situation warrants whistleblowing. A whistleblower does not necessarily have to work for the organization where misconduct occurs. If a contractor, vendor, client, or other individual who has contact with any business or government organization gains knowledge of activities that he or she is concerned may be illegal, unethical, or wrong for any other reason, he or she has the right to become a whistleblower and report the activities. Such activities may include the following:
Violations of federal, state, and/or local laws.
Malfeasance, which refers to any activity, such as theft, that is clearly illegal and wrong.
Misfeasance, which refers to a transgression that occurs in the process of exercising legal authority. This generally occurs when an individual with authority misuses or abuses that authority. For example, if a manager uses his or her position to secure a job for an unqualified friend, this is misfeasance. In another example, misfeasance occurs if an attorney repeatedly misses deadlines, creating problems for a client’s case.
Nonfeasance, which is the failure to take action that is required by law.
Using public resources in a way that is inefficient and wasteful.
Explore the US Dept of Labor’s Whistleblower’s Protection Programs webpage for more detail.
Ethics of Dissent
In 2014 the Supreme Court decided Lane v Franks, 570 US ___ (2013). (If you are not familiar with Supreme Court opinions, you will see the summary at the link provided above. But don’t stop there. Click on the oral opinion and you can hear the arguments before the court. Below that is the full transcript.) Lane was hired into a temporary position at Central Alabama Community College. In that position, he terminated the employment of an individual who was on the payroll but did not actually work at the organization and testified against her in court. The president of the community college fired Lane along with others but hired many of the others back. Lane sued on the theory that he was fired in retaliation for testifying against the earlier individual which was a violation of his First Amendment rights. The Supreme Court held that Lane did testify, not as a condition of employment, but as a citizen, therefore, his speech was covered under the First Amendment. However, the claim was dismissed because the president had qualified immunity. To understand more about why qualified immunity protected the president, click on the link.
What examples can you think of where dissent was an ethical choice in the park of the dissenter? Do citizens have the obligation to dissent if their government is doing something unethical? Who determines what is unethical? Is public opinion the final say? Can protests and peaceful demonstration change the actions of government administrators? Keep these very difficult questions in mind as you continue your studies in public administration.
Conclusion
Dissent is not always negative. At times, dissent by either administrators or citizens produces beneficial results. Legal protections exist for whistleblowers, but the process can still be daunting. Despite this, whistleblowing is sometimes a public service if it is the only practical way to put a stop to illegal and/or unethical activities that are routinely occurring in a government organization or agency.
References
Commission on Ethics and Public Trust, Miami-Dade County. (n.d.). Ethics Rules and Ordinances. Retrieved November 15, 2017, from http://ethics.miamidade.gov/ordinances.asp
Lane v. Franks. (n.d.). Oyez. Retrieved November 15, 2017, from https://www.oyez.org/cases/2013/13-483
National Archives. (n.d.). Pentagon Papers. Retrieved November 15, 2017, from https://www.archives.gov/research/pentagon-papers
National Conference for State Legislatures (NCSL). (2010, November 19). State Whistleblower Laws. Retrieved November 15, 2017, from http://www.ncsl.org/research/labor-and-employment/state-whistleblower-laws.aspx
National Conference of State Legislatures (NCSL). (2017). “Ethics in the News 2017.” Retrieved from http://www.ncsl.org/research/ethics/ethics-in-the-news-2017.aspx.
National Whistleblower Center. (n.d.) Retrieved from http://www.whistleblowers.org/
National Whistleblower Center. (n.d.). Retrieved from www.whistleblowers.org/resources/the-whistleblowers-handbook.
Robson, Ruthann. (2014). Opinion analysis: First Amendment clearly protects public employee’s subpoenaed testimony – but not sufficiently clearly to overcome qualified immunity. SCOTUSblog. Retrieved from http://www.scotusblog.com/2014/06/opinion-analysis-first-amendment-clearly-protects-public-employees-subpoenaed-testimony-but-not-sufficiently-clearly-to-overcome-qualified-immunity/
United States Department of Labor. (n.d.). Statutes. Retrieved from https://www.whistleblowers.gov/statutes
United States Department of Labor. (n.d.). The Whistleblower Protection Programs. Retrieved from https://www.whistleblowers.gov/
