[Discussion] (no subject)

[Paksoy, Hb]

 Chronicle of Higher Education
>From the issue dated July 19, 2002
 

  Whistle-Blowers on Campuses Must Have Protection
By CHRISTINE HELWICK and JACKIE MCCLAIN

Today, it seems that whistle-blowers are just about everywhere. Consider,
for example, Coleen Rowley of the Federal Bureau of Investigation, Sherron
Watkins at Enron, and, a few years back, Jeffrey Wigand at Brown &
Williamson and Linda Tripp.

Not surprisingly, colleges and universities are part of this growing
societal trend: The number of whistle-blowers on campuses has increased
significantly in recent years. For example, at the California State
University System, where we work, whistle-blower complaints have roughly
doubled since 1999.

For many institutions, the question of whether it is a good idea to have a
formal written policy to protect whistle-blowers does not get asked, because
a number of states already mandate it by statute. Often, however, those
institutions developed their whistle-blower policies long ago, and the
policies have become outdated. And whether required by law or not, every
college or university should have an up-to-date and comprehensive policy for
its own benefit and protection.

We revised our policy after processing recent complaints and discovering
many ambiguities that left the institution open to unnecessary legal risks.
Over the years the system dealt with many instances of alleged faculty or
staff misconduct, including fraud and abuse of authority. Often, the
behavior of those involved was so outrageous or egregious that we were sure
that colleagues, subordinates, and even supervisors had to have known that
something was wrong. When questioned, such individuals sometimes indicated
that they were afraid to come forward. If a strong policy protecting
whistle-blowers had been in place, their concerns could have been
alleviated, and the institution could have curtailed wrongdoing far sooner.

Whistle-blowers often claim that they have been subject to retaliation --
especially if they have exposed some institutional wrongdoing. For example,
a female student may claim to have been sexually harassed by a professor and
then receive a failing grade in his course. A faculty member may raise
issues about the administration and then suffer some loss of authority. An
administrator may complain about construction-cost overruns and then lose
his or her job.

In many instances, the individuals claiming harm have never filed a formal
whistle-blower report; they have just told a person in an apparent position
of authority that they believed someone in the institution was guilty of
wrongdoing. Yet if the person who makes the charge is demoted, disciplined,
or experiences other adverse actions -- however slight -- he or she often
contends that it was in retaliation for blowing the whistle. An institution
may spend inordinate time and money handling such claims if it doesn't have
a policy in place.

Ideally, a well-written whistle-blower policy can encourage better behavior
in the work force because employees realize that they are being supervised
not only by management, but also by their peers. It can send a clear message
to faculty and staff members that the administration is committed to a
law-abiding workplace. It can help identify problems early and ensure
compliance with the law. And even if a whistle-blower policy is never used,
it can demonstrate the institution's willingness to be held accountable to
policy makers, lawmakers, and others with influence on public budgets.

College administrators understandably have mixed feelings about the prospect
of creating yet another avenue for employee complaints. For every person who
brings attention to a genuine workplace problem, there will be others who
will misuse a whistle-blower policy as simply another opportunity to raise
petty personal grievances. On balance, however, that burden is outweighed by
the value of having an appropriate forum to deal with serious concerns
before they get out of control.

When developing a whistle-blower policy, college administrators should
consider the following:

Whom the policy applies to. Institutions should restrict the whistle-blower
policy to faculty members, administrators, students, and others who live and
work on their campuses. The policy should not be a broad invitation to those
outside the institution -- like parents, vendors, or taxpayers -- to put
forward complaints. Such individuals have less information about the
internal workings of the institution and various other venues in which to
raise their concerns. If the policy applied to them, they could easily tie
up limited resources and bog the system down.

Who can be targets of the policy. Similarly, the wrongdoers who can be the
targets of claims should be limited to those inside the institution --
primarily managers and supervisors. If the institution has enough control
over the activities of some contractors or vendors, it might extend the
policy to them as well. But it is not a good idea to try to blow the whistle
on students, who do not set policy and over whom the institution has little
control.

The types of wrongdoing to which the policy can apply. The policy should be
limited to violations of the law or university policy. It should require
employees who raise issues covered in other policies -- for example, sexual
harassment -- to choose which policy to use to redress the wrongdoing. The
whistle-blower policy should not provide a second chance to present claims
that are in process somewhere else, or to seek a different outcome after an
unfavorable result in another forum.

How to file a claim. The individual who makes a claim should write a
description of the alleged violation and file it with a college official
assigned to handle such matters. Putting complaints on the record provides
clarity and prevents someone from later asserting that a casual comment to a
co-worker, or even a supervisor, constituted a whistle-blower claim.
Designating one person with training, experience, and good judgment to
process all claims eliminates the likelihood that they will be diminished,
ignored, or swept under the rug. It also creates distance between the
whistle-blower and his or her direct supervisor, who is often the target of
concern.

Appropriate time limits. The policy should establish time boundaries as to
when a complaint can be lodged, after which it will be automatically
rejected. If a person waits too long to blow the whistle, witnesses'
memories will have dimmed and evidence will no longer exist. However,
because it may take courage for someone to come forward with a claim, the
time limits should be generous. Thirty days is probably too short; six
months to a year should be ample.

Confidentiality. Few institutions of higher education, particularly public
institutions, can deliver on promises of total confidentiality. In many
instances, it won't be possible to conduct a responsible investigation
without sharing at least some of the details of the charge. You can't get an
adequate response from the person charged, for example, without first
describing to that individual his or her alleged wrongdoing -- what was said
and done, among other facts. Thus, colleges should provide as much
confidentiality for whistle-blowers as is legally possible, but make clear
from the outset what can, and can't, be kept secret.

The process to review the complaint. The policy should describe what the
whistle-blower can expect after filing a complaint. It should outline
realistic schedules for completing the process, including any investigation
that may be needed. The policy should also establish whether a
whistle-blower can appeal the institution's response to the claim.

Protection against retaliation. Every whistle-blower's worst fear is that
coming forward will only make things worse -- that he or she will not only
be ignored, but also punished in some way. The policy should contain an
express guarantee not to retaliate against anyone who blows the whistle,
irrespective of whether the whistle-blower's claim ultimately proves to have
merit.

At the same time, institutions should be prepared to handle the situation if
an employee, indeed, makes a retaliation claim. They should answer several
fundamental questions: Did the whistle-blower suffer specific harm from some
adverse action that occurred after making the claim? Did such harm result
directly from that disclosure?

For example, you may determine that the harm actually occurred before the
person blew the whistle. Or it may have occurred afterward, but the
individual's actions that caused the harm happened earlier. A good example
is when the paperwork to process a demotion was initiated before the
whistle-blower came forward, but the actual demotion didn't occur until
after the disclosure.

Sanctions for making a false claim. Every claim of wrongdoing carries a
stigma until it is resolved and sometimes even long afterward. It has
considerable impact on the personal and professional lives of those who are
charged with the wrongdoing. Therefore, a whistle-blower policy should
announce that filing a false charge will result in disciplinary sanctions,
including reprimand, suspension, demotion, or, in extreme cases,
termination. Universities may also impose a fine on the employee equivalent
to the costs of conducting a useless investigation.

Ultimately, each institution will confront different situations, but none
should expect to be immune from the whistle-blower charges that have become
common elsewhere in our society. The best practice is a policy that contains
and controls the manner in which those charges will be dealt with -- and
gives clear notice that wrongdoing will not be tolerated.

Christine Helwick is the general counsel and Jackie McClain is the vice
chancellor of human resources for the California State University System.
This article is adapted from a presentation at the National Conference on
Law and Higher Education, sponsored by the Stetson University College of
Law.