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UNDP Comments on Government Accountability Project's “A Comparative Analysis of the U.N. and UNDP Whistleblower Protection Policies”

UNDP welcomes the attention paid by the Government Accountability Project (GAP) to critical issues of transparency and accountability.  We are of course prepared to engage in an ongoing discussion of these issues in the interest of both employee welfare and organizational effectiveness.  However, the GAP analysis referenced above proceeds from several mistaken assumptions about both the U.N. Ethics System established by the Secretary General in late 2005 and the UNDP Legal Framework on Standards of Conduct issued in September 2007.  It also seems to dismiss the Secretary-General’s attempt in his Bulletin of November 30, 2007 to engage the Funds and Programmes in a harmonization of the ethics system across these agencies as a step backwards, rather than the constructive initiative it represents.  Finally, the memo contains several important inaccuracies about the applicable provisions, which this response seeks to correct. 

Jurisdiction of the U.N. Ethics Office.  The GAP’s first mistaken assumption is that the ethics policy articulated in the Secretary-General’s Bulletins of 2005 applied automatically to the Funds and Programmes--without regard to the separate governance arrangements of these organizations.  Although that may also have been the expectation of U.N. Undersecretary Christopher Burnham and others at the time, as GAP asserts elsewhere, those Bulletins were not in fact developed in consultation with the Funds and Programmes and therefore could not simply be imposed upon them because of their distinct legal and governance structures.  Given the obvious disagreement on this point with the GAP, it may be helpful to review how the policies came into being.

• In 2005 then-Secretary General Kofi Annan began exploring the creation of a UN Ethics Office.   In the World Summit Outcome Document of September 2005, world leaders urged the Secretary-General to develop a system-wide code of ethics and requested that he submit to the General Assembly details of the planned Ethics Office.

• In separate October 2005 and November 2005 reports to the General Assembly, Secretary-General Annan provided these details.  In particular, in the October report he made clear that the relationship between the UN Ethics Office and the funds and programs was yet to be worked out.  He wrote, “Consultations with the United Nations funds and programmes are under way to determine cooperative arrangements that might be concluded between them and the Secretariat.”

• In December 2005 Secretary-General Annan established the UN Ethics Office by promulgating a “Secretary-General’s bulletin” on the subject (SGB/2005/21).  He also issued a separate Bulletin dealing with the protection of employees who report misconduct (SGB/2005/22).  The rules governing these Bulletins state that “Secretary-General’s bulletins shall not, unless otherwise stated therein, be applicable to separately administered organs and programmes of the United Nations.”  The 2005 Bulletin that established the Ethics Office did not address the relationship with the Funds and Programs.  So it was understood at the time that this was an issue to be resolved in the future.

• In this context, the General Assembly issued a resolution in June 2006 that welcomed the establishment of the Ethics Office and also urged the Secretary-General to “finalize a system-wide code of ethics for all United Nations personnel, including personnel of the funds and programmes, at an early date.”

• U.S. Ambassador to the U.N. Zalmay Khalilzad, acknowledged the confusion regarding the jurisdiction of the Ethics Office in a statement of August 23, 2007: “We believe the Ethics Office should have jurisdiction over all UN employees no matter where they work.  We recognize that there are different jurisdictional interpretations and support the Ethics Office[’s] desired approach.  We are committed to working with the Secretary-General to fix this problem.

Meanwhile, UNDP sought to revise and enhance its existing policies on employee conduct and reporting of wrongdoing.  Those revised policies were set out in its September 20, 2007 “Legal Framework for Addressing Non-Compliance with UN Standards of Conduct”.  Chapter II of the Legal Framework contains the protection policy against retaliation and is based on the approach of the Secretariat in the Secretary-General’s two Bulletins of 2005.  Where there are exceptions to the Secretariat’s approach, they relate to differences in organizational considerations and track provisions adopted earlier by UNICEF and UNFPA. 

The Legal Framework provided a comprehensive expression of the application of UN Staff Regulations 10.1 and 10.2 and Chapter X of the Staff Rules to UNDP. This document updated and replaced the Accountability, Disciplinary Measures and Procedures that were approved on 1 January 2004.  Among the major changes were:
 
• Expanded provisions defining the rights and obligations of staff in reporting wrongdoing, including regarding whistleblower protection;
• More detailed definition of the delegation of authority, including the authority of the Associate Administrator in the application of the disciplinary process and measures; and
• Clarification of the due process rights of staff members in the course of, and conclusion to, an investigation.

GAP’s different assumption about the 2005 Bulletin accounts for its assertion that the second Bulletin on ethics reform issued by the Secretary-General on November 30, 2007, weakens whistleblower protections and “complicates and confuses the issue…exempting the Funds and Programmes from the jurisdiction of the U.N. Ethics Office.”  In fact, the 2007 Bulletin is a step in the direction of greater coherence, reflecting a consensus among the Secretariat and the Funds and Programmes to promote a more harmonized ethics system, notwithstanding the formal differences in jurisdiction. This Bulletin, reflecting consultations with the Funds and Programmes, was a significant achievement, not a step backward.

The same difference of assumptions is also the basis for GAP’s criticism of UNDP’s Administrator, Kemal Dervis, in declining in June 2007 to recognize the jurisdiction of the U.N. Ethics Office to take up the case of Artjon Shkurtaj, who claimed whistleblower status for his accusations about UNDP’s operations in North Korea.  That case is now being reviewed by the External Independent Investigative Review commissioned by UNDP in September.  (According to its website, GAP represents Mr. Shkurtaj in this matter.)  However, Mr. Dervis’ understanding was also supported by the head of the U.N. Ethics Office, Robert Benson, in his recent appearance before the Senate Permanent Subcommittee on Investigations—despite the initial statements he made shortly after assuming his new position last spring. 
 
The new approach by the Secretariat and the Funds and Programmes should accomplish much of what the GAP is advocating, by promoting greater clarity and consistency throughout the United Nations on the basic rights and standards that should apply in all organizations and affording staff members an opportunity for a review of their claims, on appeal, by the U.N. Ethics Office.  

Point-by-Point responses.  Regarding the more specific issues covered in the GAP memo:

• “The [2005] policy covered all United Nations operations, down to the level of contractors, without any stated exceptions.”

This is mistaken.  Both UNDP and the UN treat contractors in the same manner.  In fact, both use the same language: “Any retaliatory measures (including threats) against a contractor or its employees, agents or representatives, or any other individual engaged in dealings with [UNDP] because such person has reported allegations of wrongdoing by a staff member will be considered misconduct that, if established, will lead to administrative and/or disciplinary action” (see section 8 of the SGB and para. 53 of the UNDP Legal Framework (LF); and UNICEF (para. 25).

• “But this year [2007] the United Nations Development Program (UNDP) has refused to honor the 2005 policy and accept the procedures, replacing a basis for genuine protection with a gutted policy of its own.”

UNDP’s new Legal Framework in 2007 was intended to clarify and strengthen, not weaken the protection of whistleblowers.  To call it a “gutted policy” is inaccurate and unfair.  Furthermore, the GAP memo discounts the steps taken in the Secretary General’s Bulletin of November 30 to promote a more harmonized system, which UNDP does support and in fact was instrumental in facilitating among the Funds and Programs.

• “Most significant, UNDP has refused to accept the authority of either the Ethics Office or the U.N. appeals process as enforcement of the policy.”

This is not true.  GAP confuses our original position that the U.N. Ethics Office lacked formal jurisdiction over UNDP (see above) with the current policy stated in the Secretary General’s Bulletin of November 30, which we support.

• “Instead, whistleblowers must submit to an internal grievance system controlled by offices that represent the adverse parties in both the investigation and any subsequent appeal – an inherent conflict of interest.”

This is incorrect.  UNDP’s appeals process is the same as in the UN -- the Joint Appeals Board and then the UN Administrative Tribunal; only the first level of review is within UNDP – the request for administrative review – as it is within the Secretariat and the other Funds and Programmes.

• “UNDP’s secession threatens to precipitate a stampede among other U.N. agencies, which already are preparing their own internal Balkanized whistleblower programs.”

There is no “secession” involved, because there was no unified system to secede from.  The progression is actually in the opposite direction; UNDP’s policy is largely based on the Secretariat policy.  All differences are consistent with the UNICEF and UNFPA policies which preceded the UNDP policy and hence did not originate with UNDP.  

• “The impact would be to limit the U.N. whistleblower policy’s authority to the relatively small Secretariat staff, allowing the much larger funds and programs to substitute a shell version weakened by conflict of interest, to deal with ethical breakdowns at their headquarters and country offices.  This is especially troubling, given the unique oversight challenge for widely dispersed field offices where ethical violations most commonly occur and have the greatest impact. Since the U.N. has been the pace setter for other IGO whistleblower programs, the precedent can be expected to spread to the Multilateral Development Banks.”

UNDP’s policy is not a “shell version.”  Once again, this comment does not take into account the appeals mechanism established under the latest SGB that the UN Secretariat and the Funds and Programmes have agreed on.  (Nor, for that matter, is the Secretariat staff “relatively small”.  It includes several substantial organizations, including the Department of Political Affairs and the Departments of Peacekeeping which presently manages more than 100,000 civilian and military personnel around the world).  

“Principal Distinctions between the U.N. Policy and the UNDP Legal Framework”

“1. Statute of limitations:  No other factor cancels rights more often than an unrealistic statute of limitations. The U.N. policy has a six year time limit to report misconduct and no time limit to report retaliation. (Section 2.1) UNDP’s substitute allows only 60 days to report retaliation, a restriction rejected in all relevant U.S. laws since the 1980’s. (Paragraph 40) ”

This is incorrect. The UN policy requires that reports of misconduct be filed “as soon as possible”.  UNDP’s policy does provide for reporting of retaliation within 60 days; the UNFPA policy provides for 30 days; UNICEF’s 60 days.  Opinions will certainly vary as to whether it is preferable to have a lengthy opportunity to come forward with claims of retaliation, or whether it is more effective to promote more expeditious claims while the evidence is more readily available and remedial steps can more quickly be taken. 

“2. Staff covered: Access to the U.N. whistleblower policy is loophole free while the UNDP substitute is saturated with arbitrary loopholes limiting its relevance. UNDP excludes protection for seconded staff members, independent contractors, employees with service contracts, employees without a formal UNDP letter of appointment, some locally recruited staff, interns and volunteers (Paragraph 6).”

This is also not correct.  The UN policy covers staff, interns and volunteers.  It does not cover contractors or people on service contracts.  The UNDP policy covers staff, but not contractors, which is also the position of UNICEF (paragraphs 1 to 3) and UNFPA (paragraph 3).  The fact that UNDP excludes staff members seconded or exchanged with regard to incidents that occur during their secondment or exchange is appropriate, since during this period seconded staff are serving with the receiving organizations and would be covered by their policy on protection against retaliation.   This is consistent with the general framework for seconding staff among UN organizations. The fact that the protection against retaliation provided for in the UNDP Legal Framework does not apply to contractors, contract employees, volunteers and interns is consistent with the scope of application of the Framework itself (which is limited to UNDP staff).

Moreover, as indicated above, the UNDP Legal Framework seeks to prevent retaliatory measures (including threats) against contractors or any other “individual engaged in dealings with UNDP” who report allegations of wrongdoing.  Under paragraph 53 of the Legal Framework, retaliatory measures (including threats) could, if established, lead to administrative and/or disciplinary action.     

• “However, under the UNDP policy, its internal ethics office consults with OHR to determine if a violation has occurred. (Paragraphs 12 and 28)  This substitutes a process for consensus with the target of what should be a wrongdoing investigation.”

• “Further, the UNDP Legal Support Office is responsible for receiving reports of allegations of wrongdoing, reviewing those reports, deciding whether an allegation is worth investigating and, in the event of a hearing, representing the administration. (Paragraph 10)  Establishing a structure in which the same office that will represent UNDP management decides whether an allegation, possibly implicating management, will be pursued institutionalizes a conflict of interest.”

The text does not provide for the LSO to decide whether an allegation is worth investigating.   LSO recommends action based on an investigation, except that in connection with claims of retaliation, the Ethics Advisor recommends appropriate action following the investigation.  In addition, OAPR itself receives directly reports of wrongdoing; OHR receives reports of harassment, and Ethics receives complaints of retaliation.  Moreover, the role of LSO in UNDP is consistent with the roles of the legal functions in the other Funds and Programmes and of the Administrative Law Unit in the Secretariat.

“4. Public freedom of expression: The U.N. policy allows whistleblowers, in certain instances, to make their disclosures outside internal channels, enabling them to go to the public, media or Congress.  UNDP, however, defines “external” as outside of “established UNDP internal mechanisms,” and cites a preference for ‘external’ disclosures directly to the Administrator or Office of Internal Oversight Services (OIOS). While these offices are outside of the ‘established internal mechanisms,’ they are still internal.  In other words, in the UNDP Legal Framework, ‘external’ reports ‘must’ be preferably made to ‘internal’ offices.”

UNDP’s provision 32 on this point is identical to the UNICEF provision 11.  As in any public or private sector organization, the right of freedom of expression does not extend to information that is appropriately treated as confidential for the purposes of internal operations.  For this reason, the Legal Framework, para. 32, which is in line with the UN SGB and the UNICEF document, provides for an exception so as not to be in violation of the UN Charter or Staff Regulations.

• “Given the confused and confusing semantics of this provision, it is unlikely that a whistleblower, forced to go to the press with a disclosure about imminent danger to public health, for example, would be protected. (U.N. Section 4; UNDP Paragraph 32)  This would functionally eliminate the right to public freedom of expression, which was the primary reform of the U.N. policy. That right is the cornerstone for the 2005 Leahy-Lugar MDB transparency amendments for MDB’s now codified in Sec. 1505 of 22 USC 262o et seq.  It should apply to any IGO, especially the U.N.”

The UN Charter and the Staff Regulations and Rules restrict staff members’ rights to speak to external sources, including member states, about internal UN information and affairs so as to protect the independence of the international civil service. This principle is fundamental to the United Nations and is enshrined in Article 100 of the Charter. The retaliation policy is thus a narrow exception to these prohibitions.  Staff are encouraged to address matters using internal mechanisms and only resort to external mechanisms strictly in accordance with the policy.  Moreover, UNDP has followed the UNICEF policy here.

“5. Non-emergency third party disclosures of illegality: The UNDP substitute adds a poison pill to the scope of protected external disclosures of illegality, even when national or international law is violated and internal mechanisms are unavailable. Whereas the U.N. policy allows a whistleblower to make a public disclosure to avoid “violations of national or international law” (Section 4), the UNDP Legal Framework (paragraph 31) enables whistleblowers to report externally only if they are seeking to avert a “violation of national or international laws with immediate adverse impact on life or property.” In addition to drastically shrinking potentially protected disclosures, it is impossible for any whistleblower to know the gravity of the result until after the fact. It means employees must guess whether they have rights before breaking ranks to challenge illegality.”

UNDP again adopted the UNICEF approach here – the provisions are identical.  As already stated, reporting outside of the Organization should be exceptional and the provision is making that clear; otherwise reports should be made using existing mechanisms as required in the UN Charter and the Staff Regulations.
 
“6. Protection against passive retaliation: The U.N. policy covers “any direct or indirect detrimental action recommended, threatened or taken” because of protected conduct. (Section 1.4)  This approach protects against common forms of passive retaliation, such as refusal to give assignments, or denial of training/resources/access to information. The UNDP substitute eliminates the ban on passive reprisals, requiring that “the action … did take place.” (Paragraph 41)”

The Legal Framework does not exclude passive retaliation.  The point is that whatever the form of retaliation, the individual is requested to provide substantiation in submitting the complaint.  This wording is identical to the UNICEF policy, para. 13.
 
“7. Whistleblower’s legal burden of proof: No matter what the stated rights and due process rules, whistleblower laws are traps to rubberstamp reprisals without fair standards to decide who wins and loses. The U.N. policy specifies that an employee’s burden is that protected whistle-blowing was relevant as a “contributing factor” to alleged retaliation. This objective test is the standard in every American whistleblower law since 1989, as well as in OAS, World Bank and African Development Bank policies. UNDP’s substitute has no objective test. It can vary arbitrarily from case to case based on subjective judgments of the ethics-HR team or Administrator. The UNDP Legal Framework also gratuitously shifts the burden of proof to employees in summary dismissal cases. (Paragraph 2.7.2 (b))” 

Gap is mistaken: they refer to the provision in the Rules of procedure of the DC (Annex I to the Legal Framework) which explains under what conditions a former staff member can file an appeal of the summary dismissal imposed on him/her.  It states that “the requesting party bears the initial burden of showing the invalidity or disproportionality of the summary dismissal”. This is normal practice and fully consistent with the jurisprudence of the U.N. Administrative Tribunal. This provision is related to disciplinary action and has nothing to do with retaliation. 

“Normally the burden of proof is on the moving party, not the alleged victim. This modification cancels the second cornerstone for any credible whistleblower policy – realistic, modern legal burdens of proof. “

If the Ethics Advisor feels there is a prima facie case, it is referred to OAPR for investigation. Based on that investigation, the Ethics Advisor will recommend appropriate action.  GAP is here referring to the disciplinary process and the burden in that context is established in the jurisprudence of the U.N. Administrative Tribunal.

“8. Poison pill interim relief: Both policies provide for interim relief, but the language in the U.N. policy creates a legitimate remedy: appropriate measures to safeguard the interests of the complainant may only be taken “with the consent of the complainant.” The UNDP Legal Framework substitutes a Trojan horse by saying that decisions on interim relief will be made “in consultation with the complainant,” which indicates that the whistleblower does not have veto authority over the type of interim relief awarded.  These measures, such as transfer or administrative leave, can and often are used as forms of harassment or maneuvers designed to isolate a whistleblower and deny him or her access to evidence.  As such, they should only be applied if and when the whistleblower has expressly agreed to them.  (U.N. Section 5.6; UNDP Paragraph 46)”

UNICEF also takes this approach to consultation, and UNDP’s policy is based on that approach.

“Other Issues of Concern”

“A series of additional differences between the two policies are of concern.  These include, but are not limited to:

9. Diluting language in the U.N. policy: It is worth noting that the UNDP Legal Framework often borrows paragraphs virtually verbatim from the U.N. policy, deleting (or adding) only select words and phrases.  In doing so, the UNDP Legal Framework weakens the original policy developed for the Organization. For example, the UNDP Legal Framework (Paragraph 41) says (emphasis added to show UNDP language not found in the UN policy):

The functions of OAPR with respect to protection against retaliation for reporting misconduct are as follows:

• to receive complaints of retaliation;
• to keep a confidential record of all such complaints;
• to do an initial review of the complaint to determine (if necessary, in consultation with OHR) if:

(i)         the complainant engaged in a protected activity;
(ii)        the action alleged to be retaliatory or a threat of retaliation did take place; and

• there is a prima facie case that the protected activity was a contributing factor in causing the action alleged to be retaliatory or a threat of retaliation.

This is identical to the UNICEF policy except that OAPR has been changed to the Ethics Advisor and the consultation can be with OHR or OAPR. In any case, the consultation is determined by the Ethics Advisor.

• “This section, which is nearly identical to section 5.2 of the U.N. policy, deletes or rewords specific provisions in such a way as to prejudice the interests of the whistleblower.  Once again, the participation of OHR is introduced into the initial review, which institutionalizes collusion with the defendant and cancels credible impartiality.  Moreover, the burden of proof on the whistleblower has been subtly but substantially increased by requiring the complainant to establish that “the action alleged to be retaliatory… did take place.”  Often, the retaliatory measure is, in fact, a lack of action rather than an explicit action.  For example, a staff member’s contract is not renewed, or a promotion is not awarded.  Under the provisions of the UNDP Legal Framework, the whistleblower in such a circumstance must now establish that non-renewal was, in fact, a retaliatory action.”

Evidence of retaliation could be a legitimate  application of regulations, rules and administrative procedures, including those governing evaluation of performance and non-extension or termination of appointment/employment (para. 52)  The burden of proof here, consistent with the Secretariat document, provides: “However, in applying such regulations, rules and administrative procedures to any UNDP staff member, UNDP management must prove by clear and convincing evidence that it would have taken the same action absent the protected activity.”  Whatever the circumstances of the retaliation, the individual can provide the substantiation and the matter is reviewed based on the information provided and the investigation.

“10. Ignoring the realities of U.N. internal justice reform: In December, the UN General Assembly passed a resolution establishing a new system for the administration of justice (A/62/597). This resolution promotes a unified internal justice system and creates a single, integrated Ombudsman office for the UN Secretariat and all funds and programs. The General Assembly is also trying to create a more coherent and unified U.N. structure at the country level through the establishment of Joint Offices and the “Delivering as One” pilot initiative. But at the same time that the U.N. is promoting the idea of a more unified organization, it is taking whistleblower rights in the opposite direction, creating separate systems with no unified standards. The new internal justice system, which has been in development for the past two years, will not function as intended if the funds and programs may select elements that will apply to them and reject others that are inconvenient.  The nature of an effective justice system is that it applies to all in the same way, with the same processes, standards, relief and penalties.  If the UNDP Legal Framework selectively substitutes itself for the terms of the U.N. policy, the General Assembly’s reform has been disregarded and the process of reform that is underway has been successfully and significantly subverted.”

GAP repeatedly exaggerates the distinctions between the UN approach and that taken by UNDP, UNICEF and UNFPA.  The few differences highlighted will not “subvert” the process of reform, which will be an ongoing and collaborative process across the organizations involved.  UNDP policies are based on the UN approach and only depart where this is consistent with either the pre-existing UNICEF or UNFPA policy for sound operational reasons. 

In any case, the latest SG Bulletin of 30 November brings the Ethics Officers together under the Chairmanship of the UN Ethics Advisor to ensure consistency and coherence and an appeals mechanism is contained therein.  UNDP is committed to working within this system and making revisions to its policies in the interests of its own Staff, the effective functioning of the organization, and the coherence of the United Nations as a whole.