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FDA must create culture, climate for protecting whistle-blower programs

Aug. 12, 2012 - 09:03PM   |  
By STEVEN L. KATZ   |   Comments

The Food and Drug Administration’s use of computer monitoring technology to capture the words and actions of its employees apparently engaged in protected whistle-blowing activity, compounded by the archiving, sharing and online posting of their communications by a contractor, raises new challenges in protecting whistle-blowers.

FDA’s apparent policy of “distrust and verify” of whistle-blowing activity by its employees [“When employee monitoring goes too far,” Aug. 6 issue] reinforces a need for the government to create a culture and climate for protected whistle-blowing.

The issue here is not the technology but rather the government’s use of technology. After all, the technology used to enhance the privacy, security and confidentiality of whistle-blower hotlines — including outsourcing those hotlines to independent and objective companies to manage — is a vital safeguard and enabler of whistle-blowing in government and in the private sector.

FDA stands as a case study in how the uses of technology advanced a culture and climate of surveillance, social control and distrust. Besides ignoring laws enacted to protect free expression and due process in the federal workplace, FDA failed to ensure the security and privacy of sensitive government information, which ended up in a contractor’s possession.

Whistle-blowing and whistle-blower protection are critical checks on mismanagement, waste, abuse and fraud. Yet, as important as the democratic principles of free expression and due process are to the integrity of whistle-blower programs and rights, vigilance and self-correction by the organization over the culture, climate and processes are equally essential.

In 1989, the Whistleblower Protection Act established the Office of Special Counsel and the role of the Merit Systems Protection Board as independent venues for protecting rights against whistle-blower retaliation. In 1994, Congress required agencies to train, educate and raise awareness of the law and framework for whistle-blowing activity among all employees.

The Notification and Federal Employee Antidiscrimination and Retaliation Act — the NO FEAR Act — was enacted in 2002. In 2008, Congress amended the Inspector General Act to require agencies to feature a link on their home websites to their Office of Inspector General, which houses whistle-blower hotlines and investigates allegations.

Yet the FDA case demonstrates that statutory requirements mean little when agencies fail to be vigilant in correcting erosions to a culture and climate that appreciates and supports the role whistle-blowing plays.

In fact, the best practices to ensure a culture and climate that is respectful and supportive of whistle-blower programs should not be confined to protecting whistle-blowers. As is repeatedly demonstrated in the Partnership for Public Service’s annual Best Places to Work survey, the winners reflect a culture and climate that promotes fairness and respect in the way agencies, executives, managers and supervisors communicate and work with their employees. As the FDA case demonstrates, culture and climate are matters of overall management, not just management to achieve whistle-blower protection.

This does not come naturally to all agency leaders and managers, and it should not be expected to, particularly because government hires principally for expertise, knowledge, subject matter specialization or functional capability. Special attention is needed in managerial training and development and extends to training with regard to whistle-blowers.

While the 1994 amendments requiring agency heads to provide awareness training and education about whistle-blower rights and protections in consultation with the Office of Special Counsel are important, the resulting training has become another box to check. PowerPoint presentations and online testing promote statutory compliance, not culture and climate. That is up to the people and the values they bring to leading and working in government.

Government must work harder at handling conflict, dissent, criticism and contrary opinions from its own workforce so management can be directly informed of problems and address them, instead of assuming and then treating the people who raise such issues as the problem.

Only then will the steps government has taken to ensure the protection of whistle-blowers be meaningful and trustworthy.

Steven L. Katz was counsel to the Senate Governmental Affairs Committee and chief counsel to the chairman of the Merit Systems Protection Board. He is the author of “Lion Taming: Working Successfully with Leaders, Bosses, and other Tough Customers.”

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