[atrt2] Further reference on Whistleblowing task

[Avri Doria]

Apologies, I did not include the entire quote:

On 9 Jun 2013, at 11:45, Avri Doria wrote:

> 
> The section from the pre-AOC One World Trust report on "Independent Review of ICANN’s Accountability
> and Transparency – Structures and Practices"
> 
> https://www.icann.org/en/about/transparency/owt-report-final-2007-en.pdf
> 
> 

Recommendation 4.1: ICANN should clearly describe the integrated nature of the
Ombudsman, Reconsideration Committee and Independent Review Panel of Board
actions. The links between the three functions and their integrated nature need to be
properly communicated.

100. While ICANN has three mechanisms for investigating complaints from
members of the ICANN community, the organisation does not have a policy or
system in place that provides staff with channels through which they can raise
complaints in confidentiality and without fear of retaliation. Having such a policy
(often referred to as a whistleblower policy) is good practice among global
organisations. A whistleblower policy that provides such protections serves as an
important means of ensuring accountability to staff as well as preventing fraudulent
behaviour, misconduct and corruption within an organisation.

101. The United Nation’s whistleblower policy is an example of good practice. It
includes a definition of whistleblowing consistent with good practice and provides
multiple channels for reporting violations thus offering safeguards against
institutionalized conflict of interest, protection for outside parties, and mandatory
discipline for those who retaliated against complainants. To embed the whistleblower
policy in the organisation’s culture, the UN also trains staff and senior management
on the implementation of the policy.

102. While whistleblower protections already exist under both Californian state law
through the California Labour Code and Federal law through the Sarbanes-Oxley Act,
ICANN should comply with good practice and develop an organisation-wide
whistleblower policy. This would clearly state the protections afforded to staff, provide
multiple channels through which a complaint can be made and clearly identify the
steps of the complaints process.

Recommendation 4.2: ICANN should consider implementing processes that act as
deterrents to abuses of power and misconduct which would protect staff who might
want to raise such instances. Specifically, ICANN should consider developing a
whistleblower policy that enables staff to raise concerns in a confidential manner and
without fear of retaliation; and developing appropriate systems to foster compliance
(see Appendix 5 for examples of good practice).

> ----
> 
> The idea of Independent Expert might involve OWT to follow up on this recommendation for their evaluation of the program that ICANN instituted in response.
> 
> Apologies for not having provided all this information by the deadline.
> 
> avri
> 


Appendix 5


Appendix 5 – Whistleblower policy

Key Elements of a whistleblower policy
• Commitment to maintain confidentiality of complainants
• Guarantee of non-retaliation against complainants
• Clear description of how a complaint can be made and how it will be investigated
• Assurances of the independence of those assessing, investigating and responding to
complaints
• An appeals process if a stakeholder is not satisfied with an investigation’s outcome
• Require all negative consequences suffered by victims of proven whistleblower retaliation
are reversed and that anyone found to have retaliated against a complainant receives
mandatory discipline
Example of the key elements of a whistleblower policy in use:
The UN Anti-Retaliation Policy is considered to be one of the most thorough whistleblower
policies available for internal and external stakeholders. The policy incorporates many of the
best practice principles, as seen below in the Government Accountability Project’s
assessment of the document:20
• A broad mandate protecting freedom of expression for those who disclose
misconduct that threatens the body’s core human rights mission.
• Multiple internal channels for reporting corruption and abuse – Ethics
Office, Office of Internal Oversight Services, and department head -- thus
providing safeguards against institutionalized conflict of interest.
• Qualified protection for external, public whistleblowing to the media or
outside organizations, overriding the institutionalized gag order requiring
advance permission for any communications outside organizational walls and
thus closing a loophole that frequently cancels real whistleblower protection.
The United Nations is the first IGO to endorse public freedom of expression.
• Protection for ‘outside parties’ including contractors, consultants and even
citizens affected by United Nations activities when they bear witness to
misconduct.
• Protection for refusal to violate the law, allowing whistleblowers to speak
out when ordered to betray not only the Charter of the United Nations and
any regulations or rules derived from it but any national or international law.
• Modern legal burdens of proof comparable to the state-of-the-art provision
of the U.S. Whistleblower Protection Act, guaranteeing fairness on standards
of evidence of retaliation an individual must demonstrate to win the case.
• The right to use the policy in the Joint Appeals Board and Administrative
Tribunal process that already exists to challenge termination or other adverse
action.
• Mandatory discipline for those found guilty of retaliation.
• A commitment to thorough training for staff and management, as well as
posting of the new rights, to help insure the reforms are properly understood
and take root in the institutional culture.