Bloomberg Law
Dec. 2, 2019, 9:00 AM

INSIGHT: Avoid Being a Whistleblower With Safe Place Ombudsman Programs

Charles L. Howard
Charles L. Howard
International Ombudsman Association

In our democracy, we believe in the use of checks and balances. A whistleblower complaint is an important tool designed to check the abuse of power, but the current attacks against the impeachment-inquiry whistleblower are upsetting.

The collective memory of these attacks is likely to discourage people from surfacing issues long after the present controversy has passed. The attacks amplify the fear of retaliation felt by anyone who may want to raise an issue of concern.

These fears are not unfounded. A 2018 GAO examination of whistleblower complaints at the Department of Veterans Affairs found that whistleblowers were 10 times more likely than their peers to receive disciplinary action within a year of reporting misconduct.

An earlier study of corporate whistleblowing by the Ethics and Compliance Initiative found that 22 percent of those who reported wrongdoing said they experienced retaliation. The result? Of those who observed wrongdoing, 46 percent chose not to report it, citing fear of retaliation.

Whistleblowers are almost always at risk, and the American legal system relies heavily on hundreds of state and federal laws designed to offer protection. The simple truth, however, is that people can easily flout anti-retaliation provisions, and there are different kinds of retaliation that whistleblower laws do not address.

Whistleblowers can be subject to retaliation by peers who feel betrayed or threatened when a co-worker breaks ranks to expose conduct. People can also perceive “under the radar” retaliation, where a supervisor’s actions may exclude the whistleblower to favor someone else or denigrate the whistleblower’s performance. This type of conduct can be very real and have the same suppressing effect as direct retaliation.

Even more pernicious is “ripple retaliation,” which is an underlying fear of possible retaliation induced by awareness of what has happened to others who filed whistleblower complaints. When reports of retaliation enter the public consciousness, people become afraid that what has happened to others will happen to them.

A case in point is Anne Mitchell, a hospital compliance officer in Texas who in 2010 raised concerns to the state medical society about physician conduct, only to be arrested and tried on felony charges. She was acquitted, but for many people it takes just one story like this to create a permanent fear of retaliation.

Almost certainly the current attacks against the impeachment whistleblower are creating powerful ripples that will inhibit people from raising concerns about misconduct for years to come.

Organizational Ombudsman Programs

Legal prohibitions against retaliation are necessary, but we need something more. How can we provide a safe place for people to discuss their concerns without having to become a whistleblower? There is a mechanism that can help—an organizational ombudsman (ombuds) program.

When created as an off-the-record, independent, neutral, and confidential resource, an ombuds can offer a safe place where a knowledgeable person provides information and guidance before a decision is made about next steps.

Ombuds can also provide options on how to surface an issue while keeping one’s identity confidential. Ombuds address the full spectrum of fears over retaliation, thus helping people surface issues that otherwise would never see the light of day.

Organizational ombuds are not an official reporting channel and do not conduct investigations, but as a confidential resource they help mitigate fears of retaliation while offering creative options on how issues can be reported to formal channels where they can be properly investigated.

Ombuds programs in the United States have recently received strong endorsements from two national organizations: The Administrative Conference of the United States (ACUS) and the American Bar Association.

In late 2016, ACUS—the premier federal agency focused on improving federal administrative processes—recommended that Congress and the President make greater use of ombuds programs. In Resolution 103, adopted by its House of Delegates in August 2017, the ABA also urged organizations to make greater use of ombuds programs that comply with generally accepted standards.

Federal agencies and other organizations should consider the valuable role an organizational ombuds can have in filling the gap between the promised protections of whistleblower laws and what they can actually achieve.

An organizational ombuds can help provide a check on the abuse of power by providing a safe and confidential place for people to receive guidance and options for surfacing an issue without having to become a whistleblower.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Charles L. Howard is the executive director of the International Ombudsman Association. He was previously partner and general counsel with Shipman & Goodwin in Connecticut, and is past chair of the Ombuds Committee of the Dispute Resolution Section of the American Bar Association. He is the author of the book, The Organizational Ombudsman: Origins, Roles, and Operations—a Legal Guide.