Whistleblowing Policies in American States: A Nationwide Analysis

Introduction

Codifying ethics in the government has long been controversial, as skeptics doubt its utility while advocates believe it can enhance employee and organizational behavior (see, for example, Bowman & West, 2018). Despite their contentious nature, many jurisdictions—and all states—have codes and statutes that can provide a standard against which conduct can be assessed. Yet, while state-by-state corruption varies, it remains common in subnational public administration (The Center for Public Integrity, Global Integrity, & Public Radio International, 2012; Wilcox & Krassner, 2012). Given the low visibility and high complexity of public organization operations, detection of wrongdoing often rests with government employees.

When confronted with fraud, waste, or abuse, civil servants have many alternative ways to respond: exit (resign), voice (work toward change, engage in administrative sabotage, blow the whistle), or loyalty (do nothing, go-along to get-along, or become directly complicit) (Nielsen, 1987; O’Leary, 2013; Olson, 1971). But, it is undeniable that the whistleblower—someone who reveals information about illegal, immoral, or inefficient action that endangers public health, safety, or freedom—plays a significant role in democracy. ¹ Although not all disclosures become headline news, employees have been responsible for revealing problems in areas such as regulatory corruption, merit system abuses, dangers to public well-being, and conflict of interest regulations (Bowman & West, 2018; for an extensive list of whistleblowers since 1773, see https://www.whistleblower.org/timeline-us-whistleblowers/). Such incidents demonstrate that officials can be held to account by those willing to “speak truth to power.”

To investigate whistleblowing sections in state laws and codes, documentary and attitudinal data were gathered. The research question is given as follows:

The premise is that whistleblowing clauses have value, albeit uncertain, in the practice of public administration. Content analysis is supplemented with online survey and interview data. The discussion that follows presents the results of this comprehensive up-to-date study of state-level whistleblowing provisions. ²

Background

Laws, codes, and whistleblowing play a role in the bond of trust and confidence between citizens and their government. To assure democratic accountability and responsibility, laws, codes, and whistleblowing also reflect the need to balance an employee’s duty to the public as well as duty to her employer.

In the case of aspirational ethics codes and regulatory conduct codes, opinions about them range from pointless and unnecessary to useful and important (Bruce, 1996). At their best, they promote objectivism (the belief in transcendental values), community (the notion that moral conduct is not simply a matter of private behavior, as personal integrity is subject to communal judgment), and courage (the idea that codes can foster valiant action) (Chandler, 1983). At their worst, such canons are general and vague (especially aspirational codes), proscriptive instead of prescriptive (notably conduct codes), and lack relevance to actual problems. They can trivialize ethics, reduce it to staying out of trouble, and fail to challenge and inspire. Both code types are more likely to have indirect, rather than direct, effect as they can serve as: a “sign post,” leading employees to consult colleagues and organizational policies; a “shield,” allowing personnel to better confront dubious actions; and an “alarm,” encouraging individuals to report wrongdoing (Schwartz, 2011, p. 280).

With respect to whistleblowing laws, they serve similar purposes and go further by providing protection to employees who detect and disclose immoral or illegal behavior that violates the public trust. Whistleblowing is the single most significant source for detecting and preventing crime—more so than government regulators, law enforcement personnel, and program auditors combined (Association of Fraud Examiners, 2016; PricewaterhouseCoopers, 2007; U.S. Department of Justice, Civil Division, Commercial Litigation Branch, 2010). The federal government, for instance, recovers US$7 for every US$1 spent fighting fraud, much of which comes from whistleblowing (Kennedy, 2012). Yet, the majority of whistleblowers exist in obscurity and never receive vindication. Those who are vindicated “are the rare exception, and even most of them pay a horrible price with lifelong scars” (Devine & Maassarani, 2011, p. 18; see also Kolhatkar, 2019). The ideal situation—where the cause is just, all administrative appeals have been exhausted, responsibility is openly accepted, and the dissenter is above reproach—is unusual.

Overall, robust laws and codes provide behavioral guidance, cover a wide variety of roles in the profession, and contain enforcement mechanisms (Pugh, 1991, p. 28). Likewise, a best practice standard, based on national laws and international organization policies, contains 20 specific criteria organized by:

Despite the significance of whistleblowing, there is little material on the effectiveness of state codes and laws. The relevant literature works (e.g., Alford, 2000; Gilman, 2005; Miceli, Near, & Dworkin, 2008; Stanger, 2019) contain many normative studies, as well as empirical work, but the current whistleblowing sections of state laws and codes have not been subjected to close analysis (see Note 2).

Method

Content analysis of documents was used to examine the type of whistleblower protections in the codes and laws of the 50 states (and District of Columbia). Unlike previous studies that assessed state codes (Blac, Grob, Potenski, Reed, & Walsh, 1998; Hays & Gleissner, 1981), this research focuses specifically on whistleblower clauses in codes. Although the existing literature includes content analysis of corporate whistleblowing protections (e.g., Hassink, Vries, & Bollen, 2007; Lewis & Kender, 2007, 2010; Moberly & Wylie, 2011), no similar work has been done recently on American states. Prior private sector–focused research often used questionnaires to gather policy documents with whistleblowing protection provisions (Hassink et al., 2007; Lewis & Kender, 2007, 2010). This investigation used a data collection strategy similar to Moberly and Wylie (2011) by first examining public documents (for each of the states plus the District of Columbia), but was then complemented by an attitudinal survey and interviews.

The whistleblowing statutes reviewed here are laws of general application to public or private employees (or both), protecting those who uncover suspected wrongdoing in their workplaces. These laws do not restrict coverage to those disclosing violations of a single statute and are distinct from other statutes containing anti-retaliation provisions providing protection to employees who report wrongdoing prohibited by specific statutes (e.g., occupational safety and health, labor laws, and civil rights) and from those protecting individuals in particular industries (e.g., health care).

A subject inventory containing multiple variables, comparable with those used in the corporate studies by Hassink and colleagues (2007) and Moberly and Wylie (2011), was developed. The state codes and laws, accordingly, were assessed based on the:

After extensive training, two research assistants (one a graduate student and a recent graduate with managerial work experience) reviewed each whistleblower-related provision in the codes and statutes. Inter-coder reliability for the cases across a representative sample of the variables was 91%. Following the examination, the two assistants met to resolve any differences. When resolution was not possible (4% of the cases), the issues were discussed with the authors who made the determination.

Complementing the analysis of whistleblowing clauses in the state codes and laws, an e-mail was sent to each agency identified as responsible for whistleblower protection. It included a link to a nine-item Qualtrics questionnaire requesting an assessment of the effectiveness of the state’s whistleblower protections. Administrators or their designee from 24 states (48%) participated (see Appendix for list of states that responded and relevant state whistleblowing codes). ³ This rate is consistent with what is often found elsewhere in the literature; in fact, it is above both the 30% average for online surveys and 40% average for e-mail surveys (Saldivar, 2012). The questions first asked respondents to use a 1 to 7 scale, from strongly agree to strongly disagree, to indicate whether their state whistleblowing protection policy demonstrates:

The questionnaire also requested officials, using a 1 to 5 scale (from very effective to very ineffective), to provide their evaluation of the quality of the following: coverage and violations, reporting, investigations, protections, and penalties.

Finally, the participants were invited to discuss their state’s whistleblowing policies and practices in an interview: Eight in-depth telephone interviews were conducted. ⁴ The 20- to 40-min, 10-item, semi-structured interviews contained follow-up questions expanding on the topics above. Interviews were supplemented by information from the state Office of Inspector General websites. The findings from each data source—documents, survey, and interviews/IG websites—are discussed below.

Document Analysis Findings

Whistleblowing codes and laws can be found on websites such as findlaw.com, law.justia.com, workplacefairness.com as well as from state government websites and information from the National Conference of State Legislatures. The discussion that follows includes code coverage and violations, disclosure recipients, retaliation, confidentiality, investigations, protections, and penalties.

Survey Findings

Respondents confirmed that the best source of whistleblower protections for public employees is the state whistleblowing law. A few also mentioned such provisions can be found in the state code of ethics or code of conduct, but the statute was deemed the most reliable source. There were slight differences among participants when asked to define “effectiveness” with statements like, “it raises employee awareness and describes the scope of protections,” “it offers the greatest protection, relief and remedies,” “it provides retaliation protections and in some cases monetary awards for those who come forward,” “it catches problems,” “it is the only place where whistleblowers have explicit protections,” “it is the sole source of information about the state’s whistleblowing law, from which any other agency or institution’s policies are based,” or “its provisions keep names confidential, prohibit retaliation, and have an impartial multi-agency review process.” The law contributes to the education of employees and managers about whistleblowing, noted an official from the Midwest, who observed that its impact is seen in the number of reports. One administrator qualified his response about effectiveness saying, “it is the only source of protection. We still receive complaints of retaliation even with the statute in place.” Another said the law was helpful in “encouraging public officials and employees to disclose information concerning possible violations of law and fiscal waste or mismanagement.”

Respondents were then asked to keep their definitions of effectiveness in mind and respond to this sentence stem: “The state whistleblowing protection policy promotes . . .” They were presented five statements (with a scale ranging from strongly agree to strongly disagree). More than half of the sample strongly agreed or agreed with all five statements, indicating that the law was perceived to promote:

Despite this optimistic assessment, the percent who only “somewhat agreed” was noteworthy, indicating less enthusiastic assessments (ranging from 17% to 35%). This muted response was most evident regarding the “clear understanding of what constitutes whistleblowing” (35%), “significant commitment to protect whistleblowers” (30%), and “well-designed appeal channels (26%)” and “impartial review mechanisms (17%).” Furthermore, 17% disagreed, somewhat disagreed or strongly disagreed regarding the quality of appeal channels.

When asked a subsequent question (while still keeping their definition of “effectiveness” in mind), respondents were instructed to assess the effectiveness of specific whistleblower provisions by responding to five statements (using a five-item scale from very effective to very ineffective). Most officials thought four of the five statements about code provisions were effective or very effective, including “reporting guidelines” (50%), “reporting channels” (58%), “protection from retaliation” (70.8%), and “confidentiality and anonymity” (58%). However, a high percentage indicated they did not know or could not say anything about the effectiveness of provisions dealing with “confidentiality and anonymity” (42%), and a majority were uncertain about “investigation details” (58%). Even the four statements where half or more judged the law to be very effective or effective had high percentages of “don’t know/can’t say” responses (ranging from 21% to 58%). Thus, those charged with responsibility for overseeing implementation of whistleblowing protection policies were often uncertain or unwilling to render a judgment on the effectiveness of certain features of the statute.

When requested to identify the location of the whistleblowing protection office in their state, the replies indicated a marked lack of uniformity. The most popular sites in the 24 states were the inspector general or attorney general office. Others mentioned were the state human resource department, department of labor, legislative management audit department, state ethics commission, legislative council/ombudsman/personnel office, state auditor’s office, office of the Equal Employment Opportunity (EEO) coordinator, Governor’s office, department of workforce development, independent dispute resolution agency, and human rights office. In some states, there are multiple offices; in other states, there are none. As one respondent said, “There is no defined whistleblowing office. All agencies (usually legal or human resources) handle whistleblowing, although employees can come directly to the state inspector general.” This was the pattern elsewhere as well. In at least one state, the law only says “state investigative body” handles whistleblowing protection without specifying a particular department or administrative unit.

To summarize the survey data, the state whistleblowing laws in general are deemed to be effective as a guide to those who witness and wish to disclose illegal or unethical behavior. However, perceptions about the quality of specific whistleblowing protection policies, while positive, are mixed and signal some uncertainty, especially regarding investigation details, confidentiality, and anonymity. The survey also revealed the patchwork quilt of agencies with responsibility for enforcing whistleblowing protection and anti-retaliation policies. To flesh out the details of policy implementation issues and concerns, individual interviews were conducted.

Interview Findings

Follow-up interviews with eight officials from whistleblowing units in selected states (as well as review of state inspector general websites) added more detail and insight to the survey findings. With regard to informing employees about whistleblowing protection policies, interviewees indicated the use of various strategies, including publishing an 800 phone number and descriptive information on the state website (including frequently asked questions and answers or links to the relevant statute); sending blanket e-mails or brochures informing readers about reporting channels, forms, guidelines, and filing procedures; conducting outreach involving television interviews or training sessions on what whistleblowing is and what it is not; and offering potential rewards for uncovering fraud, waste, and abuse as well as other forms of wrongdoing.

Often such communications clarify the type of allegations that are investigated (state business involving violations of law or breach of the public trust) and the types that are not investigated (personal issues and grievances). Whistleblowing is frequently encouraged in two ways:

Employees may also be encouraged to disclose employer violations to avoid personal liability for the violations, if they knew of the offense and did nothing.

In one mid-western state, the chief investigating officer (Anonymous, personal communication, April 25, 2019) reported that only 10% of the complaints received in the state auditor’s office came from employees. He clarified that citizen and prisoner complaints were much more frequent than those from staff. In terms of the number of complaints, he explained, “In the past two years we received around 110 complaints. About half were actionable. If there is no public interest at stake, the complaints go straight to the agency in question.” In terms of needed policy reforms, this official stated:

We need to raise employee awareness about whistleblowing protection—to do some branding: this would involve strengthening our state law to clarify our auditor role and establishing an incident response protocol.

An administrator in the state inspector general’s office in a southeastern state (Anonymous, personal communication, March 26, 2019) indicated that wrongdoing can be reported either via a hotline (anonymous) or by filing a whistleblowing report (requires name, contact information, detailed summary of specific violation, witnesses, material supporting the claim, and so forth). In that state, the IG has received hundreds of hotline complaints over the years as opposed to only a dozen instances of whistleblowing involving self-identification. Most of the complaints were financial in nature. The only way whistleblowers can receive a financial benefit is if the matter involves monetary concerns; anonymous complaints forego whistleblower status, although the issues can be investigated. Given the low number of cases with a named whistleblower, it is not surprising that, despite a policy that allows for such rewards, there were no cases involving financial rewards to whistleblowers in this state. The existence of specific statutes, offering protections to one or more groups of public employees, supplement the more general whistleblowing protection act in this and several states. Multiple laws of this type reduce the threat of retaliation and increase the incentive to lodge complaints.

Nonetheless, the interviews suggest that concern about possible retaliation is a real deterrent to disclosure, especially if the allegation is wrongdoing by an agency superior. As a chief executive officer (Anonymous, personal communication, March 19, 2019) from a northeastern state observed,

People are often reluctant to divulge information for fear of possible retaliation, and often getting information is difficult without a subpoena. There have been some cases where information is given by a witness and that person subsequently lost their job. However, it is very difficult to verify that this is a result of retaliation, and I can’t think of an instance when a dismissed employee came to us [the State Ethics Commission] with a claim of retaliation. Other reasons tied to job performance may be offered by the employer to explain the dismissal.

In this state, there are two general state laws protecting whistleblowers: the Whistleblowing Protection Law and the State Ethics Act. The state receives thousands of complaints each year regarding government fraud, waste, and abuse. In thinking about process-related reforms to existing legislation, this CEO suggested that a time frame could be specified in the statutes (e.g., 60 days) from the time a retaliation claim is made (or a witness divulges information of wrongdoing), and the time that person is dismissed or punished. The thinking was that this would help in establishing the possible cause-and-effect link between the complaint and the punishment given.

The same interviewee also confirmed findings from the online survey, regarding the complexity of filing complaints given the many different reporting channels. He described a problem that was echoed by others:

The whistleblowing protection function in our state is very fragmented. Where an employee would go to file a complaint depends on where they are employed. If they work in the executive branch, they could go to the ethics commission or the state IG office. If they work in the legislative branch, they would go to chief legal counsel of the Democratic or Republican caucus to lodge the complaint. For example, sexual harassment or assault cases brought by those on the legislative staff could be taken to the caucus and then may be referred to the District Attorney’s Office.

Furthermore, it is not uncommon for a case to be referred elsewhere. It could start with a complaint to the Ethics Commission and then be sent to the State IG Office, and then to the Governor’s Human Resource Office. This “Tinkers-to-Evers-to-Chance” ⁵ referral process could take some time and lead complainants to perceive delays as system breakdowns, especially if reporting channels are not clearly communicated. Overlapping state and federal employment statutes (e.g., environmental or substance control laws with whistleblower protections) add to the complexity for employees on where to file. When a complaint is made in this state (and others), it involves using an online form sent to the IG’s office; the practice here and elsewhere is to maintain the complainant’s confidentiality and to allow the option to submit information anonymously. Nonetheless, failing to supply contact information will likely impede a thorough investigation because the regulating agency cannot get the necessary details from the person reporting the violation. The whistleblower’s name is kept confidential as is the substantive complaint, although the latter is subject to various caveats (see Table 1).

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Table 1.

Documentary Analysis of All State Whistleblowing Laws.

Legal provisions	Percentage of laws
Coverage, tone, and violations
Applicability
State employees	100.00
Private employees	45.10
Tone
Required/duty	19.61
Employees are encouraged to report	28.00
“Can” or “may”	84.31
Violations
State code	100.00
Federal code	90.20
Ethical code	29.41
Finance	68.63
Health/safety	68.63
Public safety	54.90
Discrimination (age/race/gender/disability)	96.08
Abuse of authority	62.75
Mismanagement	48.00
Reporting recipients and guidelines
Recipients
Supervisor	54.90
Compliance or ethics office	54.90
Hotline	37.25
State agencies or programs	96.08
Human resources	3.92
Legal department	98.04
Guidelines
Instructions or procedures are transparent	72.55
Includes law enforcement/authority’s involvement	58.82
How to report confidential information described on form frame	17.65
Documentation on violation	78.43
Retaliation, confidentiality, and anonymity
Retaliation
“No retaliation” promise and/or code prohibits retaliation	98.04
Report can include “suspected” violations	68.63
False or malicious reports are unprotected	43.14
Confidentiality and anonymity
Some or all reports will be treated as confidential until the case is closed	78.00
Report will be kept confidential, except as required for investigation	78.00
Report will be kept confidential, except as required by law or regulation	46.00
Violations can be reported anonymously	6.00
Publicity is not permitted	50.00
Investigation, protections, remedies, and penalties
Investigation details
State will investigate or give serious treatment to whistleblower disclosure	88.00
State expects whistleblower involvement	72.00
Codes require keeping documentation	64.00
State provides feedback on investigation to employee	90.00
At-will disclaimer
Public policy	84.31
Implied contract	82.35
Covenant of good faith and fair dealing	39.22
Remedies and penalties
Penalty fine	33.33
Demotion	3.92
Suspension without pay	5.88
Reinstatement of fringe	54.90
Back pay	66.67
Reasonable attorney fee	70.59
Awarded cost	56.86
Seniority rights	23.53
Back to the same position	19.61

Interviewees pointed out that whistleblower safeguards are also covered for cases other than fraud, waste and abuse. These can include anti-retaliation clauses for such disparate issues as violation of the code of ethics; occupational safety and health matters; discriminatory actions; legal violations (e.g., minimum wage, chemical right-to-know); abuse and neglect of children, the elderly, or disabled; water or air quality control; human/civil rights; unfair labor practices; and other topics. Such anti-retaliation clauses are designed to shield employees from demotion or firing for specific claims of illegal or improper conduct.

Protection is also provided for good faith reporting based on reasonable belief of wrongdoing made to the state inspector general, ombudsperson, ethics commission, or other administrative or adjudicatory bodies. However, when allegations are knowingly or recklessly false, those providing the information could be removed from protection and subject to financial penalties. It is incumbent on the whistleblower to report the violation in good faith, specify the laws or policies that are violated, document the nature of the wrongdoing, and identify the parties involved. Even if allegations are not proven, the whistleblower will still be protected as long as the disclosure was made in good faith.

In addition, employee protection can also depend on report-recipient requirements. That is, does the statute afford protection for those filing reports with external government bodies or is protection available only to those who disclose wrongdoing internally (at least initially), or, alternatively, is it available in both instances? Federal statutes generally contain the latter. The requirements on this matter are diverse among the states. Some states have exceptions to the internal reporting where superiors are the wrongdoers; other states do not explicitly mention exceptions. Protection is not given to those who only disclose to the media or nongovernmental third-party organizations. ⁶

Typically, especially in the larger states, staff in the report-receiving office would assist anyone who claimed that wrongdoing was taking place in the executive, legislative, or judicial branch. The disclosure might go initially to the supervisor, but generally the issue is escalated elsewhere for resolution. In one southern state, the receiving office would typically be the office of chief inspector general, the agency inspector general, human relations commission, or the whistleblower hotline. The investigations of fraud, waste, or abuse in the executive branch may be conducted by either the state or agency IG office to determine whether the case qualifies as whistleblowing. Violations could involve gross mismanagement, malfeasance, misfeasance, gross waste of public funds, fraud, abuse, or gross neglect of duty. Some units interpret the law broadly with just one of these violations qualifying as whistleblowing, whereas other units interpret it narrowly where mismanagement, malfeasance, and misfeasance must all be present. This variation in interpretation is viewed as a “large concern” by one official who believes an amendment of the law is needed to clarify legislative intent (Anonymous, personal communication, April 7, 2019).

In this state, there was a time frame of 20 days (in other states, it is 60 days) to make the initial determination of whether the report constitutes whistleblowing and then, if whistleblowing status is confirmed, another 60 days to investigate the claims made in the disclosure (waivers/extensions on the deadlines are possible). The investigation seeks to determine the gravity of the disclosed information, the likelihood that the result would make government more efficient and effective, whether the disclosed information mainly concerns personnel practices, and the time lapse between the violation and the disclosure.

Retaliation claims are handled by a different body in a southern state (human relations commission) where they would investigate whether internal reporting had occurred and, if so, there would be an inquest of alleged retaliation with reports due in a specified time frame. The complainant would be given the opportunity to respond with comments in a certain number of days. This two-track investigative process adds further complexity.

A manager from this state’s office of inspector general (Anonymous, personal communication, March 26, 2019) observed,

Multiple agencies must be contacted when reporting wrongdoing and often the right hand doesn’t know what the left hand is doing. Agency A may have completed a partial investigation, while agency B is just informed and starts from scratch with no knowledge about what agency A has done. There are quasi-state agencies that are treated differently from state agencies. This diffusion of responsibility, lack of coordination, and disparate treatment needs to change.

The whistleblowing protection structures in this state with a state IG and agency IG are patterned after practices at the federal level (e.g., the agency IG at the U.S. Department of Justice as well as Health and Human Services). ⁷

These comments were echoed by a statewide EEO coordinator (Anonymous, personal communication, April 4, 2019) in another southeastern state:

Everything in this area is compartmentalized. Issues are handled by different units in each of the three branches of government. In the executive branch grievance appeals are handled differently than whistleblower appeals. Civil rights complaints are handled differently as well. Violations of the ethics law are handled differently than violations of the whistleblower law even though either channel could be used for certain types of wrongdoing.

This interviewee points out that the threshold for whistleblowers is high, patterned after the federal law. To qualify as a whistleblower, the coordinator said, “the wrongdoing has to be widespread—affecting more than one person—specific, serious, and substantial.” This would include violation of law, government waste, danger to public health or safety, abuse of authority, or mismanagement. In this person’s experience spanning 11 years, there has not been one case that met this high threshold.

The general counsel of the human resource department (Anonymous, personal communication, March 27, 2019) in a different state said that cases of various types come to them through multiple channels. He described a multi-level structure with some processed at central office and others at the agency level. Incidents might be referred to the attorney general, the state ethics commission, or the department where the complaint originates. Commenting on the procedure, he noted,

At the central-office level we are more reactive to the claims that we receive. The agencies are more likely to be pro-active in encouraging and informing employees about whistleblowing where wrongdoing is occurring and seeking resolution in their unit. In the matter of retaliation, however, the central HR office is pro-active with training.

Complaints about retaliation are fairly frequent, maybe a half dozen cases a year. We offer two training sessions quarterly for employees and managers. These deal with retaliation and employment law. Such training is mandatory for some based on need and voluntary for others.

In one western state, the human resource division handles employee appeals including whistleblower complaints. Employees covered by the whistleblowing law include elected officials, political appointees, and those performing public duties for pay. Employment relationships in this state are generally at-will in nature for other than classified employees. Although at-will personnel can be discharged for any or no reason, public policy exceptions can be provided through the courts with common-law protections or through the legislature with laws on such subject areas as discrimination or workers’ compensation. Such exceptions restrict employers from terminating staff for reasons that violate the state’s public policy (e.g., refusing to participate in an illegal practice or reporting wrongdoing to proper authorities), thereby enabling workers to allege retaliation and wrongful discharge.

A claim of wrongful reprisal in this state can be made to the human resource unit. A state human resource official (Anonymous, personal communication, March 29, 2019) said,

In cases where at-will or probationary employees are terminated, they may seek whistleblower protection by claiming retaliation for exposing wrongful behavior. Sometimes such employees “game the system,” attempting to prove the employer wrongfully discharged them for disclosing illegal activities, because lacking classified status this is the only way to have the case considered.

In the past two fiscal years (FY18/FY19), whistleblowing appeals that claimed retaliation made up 15% of all appeals submitted. During fiscal year 2017, however, whistleblower appeals only made up 4% of appeals. Over the past three fiscal years, only one whistleblower appeal was reversed in favor of the employee, and two were denied in favor of the employer. The vast majority of whistleblower appeals were either dismissed or withdrawn. In general, employees can pursue their case further in court, but the suit must be filed within 2 years of the retaliation. In this state, the public policy rationale for whistleblowing is found in the Ethics in Government law (Anonymous, personal communication, March 29, 2019).

Generally, with respect to remedies and penalties resulting from complaints or retaliation, the employer often has the opportunity to correct wrongful actions once notified. Usually, an employee has to exhaust the organization’s internal grievance or appeal procedures prior to filing a retaliation lawsuit. ⁸ Typically, civil action can be brought within a specified time period (e.g., 90 days) of an alleged violation. Employer remediation costs imposed by the court can include back pay, interest on back pay, promotion, restoration of lost benefits, compensatory damages, attorney fees, injunction, full reinstatement, and other appropriate forms of relief. Penalties could include a civil fine (e.g., maximum penalty of US$10,000 per violation, civil fine each day per injured employee for willful violation), suspension without pay, opportunity to resign, disqualification of employment for a specified period, jail time, or other punishments.

Overall, the interview data reveal a number of issues as states implement policies shielding employees from retaliation when they report wrongdoing. Workers are educated about protection policies and incentivized to make disclosures in most states. Qualifications for whistleblowing status can vary and be interpreted narrowly or broadly. Diverse reporting channels, while available to personnel, add complexity and potential confusion to the reporting process; this is because where an employee files often depends on where he works and more than one law may apply within a state. Protection is granted to those who report internally, externally, or both depending on the state. Although anti-retaliation provisions are ubiquitous, appeals when retaliation is claimed seldom result in favorable results for the whistleblower. Where successful, those claiming wrongdoing can be compensated and those found to have retaliated can be penalized.

Summary

To summarize, results from the documentary, survey, and interview/website analysis show that state whistleblowing protection statutes have similar anti-retaliation provisions; however, the states vary in many respects. There are differences in the way state policies educate the workforce regarding:

Although there may be a difference between legal requirements and actual implementation of laws, this study confirms that one or more whistleblower protection statutes are found in all states and Washington, D.C. covering state and some business employees. The law affirms that staff are expected to report illegal and unethical wrongdoing. There are multiple channels for reporting, even though there is some uncertainty about their actual impact. Alleged violations must be carefully documented and follow procedures specified. The information disclosed must be kept confidential with some exceptions, but the option to report violations anonymously is not permitted to the extent found in the private sector. Whistleblowers are entitled to be kept informed during the investigation, but state laws can put limits on the type and timing of information sharing. Several remedies for whistleblowers are potentially available after case resolution and penalties for retribution exist.

Those responsible for implementing whistleblower protection policies believe that legislative requirements are effectively established by the statutes that offer safeguards for those alleging wrongdoing. Although survey respondents differ somewhat in their definitions of “effectiveness,” they indicate that statutes specify protections. This is done by encouraging disclosure of information, assuring confidentiality, prohibiting retaliation, and providing relief and remedies. The administrators agree that statutes represent a significant commitment to protect whistleblowers, create impartial review mechanisms, and clarify what constitutes whistleblowing. There is slightly less agreement that the law provides well-designed appeal channels and that it clearly establishes who is entitled to protection.

Notwithstanding this level of agreement, it is surprising that half of the managers supervising the implementation of whistleblowing policies did not know or could not say whether the law effectively assured confidentiality and anonymity to those reporting disclosures, and four in 10 were unsure or could not say that investigations are effective. Although reporting guidelines, disclosure channels, and protection from retaliation are deemed to be sound by most of those surveyed, even these factors had percentages of “don’t know/can’t say” that ranged from 21% to 58%. Thus, it is clear that the laws cover the critical issues to provide whistleblowing protection. In several areas, laws are perceived to be successful by administrators charged with their implementation. Nonetheless, the level of uncertainty, or unwillingness to affirm the law’s effectiveness in selected areas, remains a concern.

The analysis of whistleblowing laws, ethics codes, and attitudinal data also reveal the lack of uniformity in administrative responsibility for implementing or enforcing the legal provisions. Although law enforcement officials (attorneys general, inspectors general, courts) have a crucial investigative, enforcement and adjudication role, agencies with oversight responsibilities differ considerably from state to state and often within a state as well. Implementation responsibility ranges from no single unit with an administrative role to multiple units within a particular state. The national Association of Inspectors General is an overarching professional group that, together with its state affiliates, coordinates and offers professional guidance to those charged with protecting state whistleblowers. However, the administrative complexity and fragmentation in many states no doubt influences the quality of whistleblowing protection; this may partially explain the uncertainty or unwillingness of respondents to share their assessments of the efficacy of whistleblower protection.

Insights from the interviews further highlight differences in the ways protection is provided within and between states. States use several strategies to inform employees about whistleblowing protection policies and offer incentives to encourage exposure of dangerous, illegal, or otherwise unethical practices. Safeguards cover a broad range of issues in some states and a narrow range in other states depending on the number of statutes or codes dealing with disclosure and anti-retaliation requirements. Variations in who receives the reports can influence the protection available to the whistleblower. The ways investigations are conducted and the range of rewards and penalties also differ from state to state. Notwithstanding the statutory provisions and incentives for disclosure, concern about possible retaliation, complexity of reporting channels, and sense of loyalty to employers are barriers to reporting illegal or unethical government practices.

Conclusion

This article began by discussing the codification of ethics in government as a standard for assessing the conduct and role of civil servants in detecting wrongdoing. Together codes and laws, if properly designed and implemented, provide guidelines and protections for whistleblowers who identify and disclose immoral, unlawful, or unsafe behavior. What are the implications of this analysis for state policy makers and ethics scholars? How effective are these policy guidelines and protections in the states?

Based on findings from this research, policy makers are encouraged to examine their whistleblowing protection laws and codes to determine whether:

Periodic reappraisal and adopting needed reforms would help employees and administrators address operational concerns to improve the effectiveness of whistleblower protections.

Addressing the legal provisions and operational concerns using the bullets or checklist above will be helpful, but actually instituting such changes to make policies more effective will be a major challenge. In part, this is because of the complex and scattered nature of whistleblowing laws, structures, and processes in many states. This leads to the question of why they are so complicated and what this means for the overall merits of such laws. As revealed here, these characteristics emerge from (a) organizational conditions under separation of powers and federalism, (b) the actions of various state institutions to preserve oversight turf, as well as (c) to protect themselves from frivolous claims and undue public embarrassment by often referring complaints elsewhere.

Confusion can result because the structures and processes for handling whistleblower complaints in the executive branch differ from those originating from the legislative branch. Lack of clarity also occurs due to the combination of federal and state statutes that address protections for public interest disclosure as well as the overlapping responsibilities of state ethics commissions and those enforcing legal whistleblowing provisions. Central offices receiving complaints frequently defer or delegate them to decentralized units or other agencies for complaint-resolution, making it hard to track the process. The diverse departments and bureaus providing oversight—ranging from inspectors general to auditors to human resource management departments and others—can lead to uncertainty and inconsistency in implementing whistleblower protections. The courts may or may not be involved if complaints cannot be resolved administratively, adding yet another time-consuming, expensive stage to the process.

Because of these factors, the question is raised of whether simpler, tidier, and more effective whistleblower laws and processes are even feasible, as they may retard more than encourage whistleblowing. Further research might build on the findings from this study by searching for and documenting best state practices in whistleblowing protection to determine the feasibility of replication in other jurisdictions. Some innovative examples may be found in states not examined here and even at local levels. ⁹ It would also be valuable to assess the views of those who receive whistleblower complaints. In addition, it would be helpful to study those who make public interest disclosures, and to take into consideration their evaluation of the system and procedures.

Such assessments are important because of the grave consequences for those who blow the whistle. These effects are vividly depicted in books and articles (e.g., Alford, 2000; Bolkovac & Lynn, 2011; Devine & Maassarani, 2011; Hertsgaard, 2016; Kenny & Fotaki, 2019; Kolhatkar, 2019; Mueller, 2019) as well as films (Silkwood, Serpico, The Insider, The Whistleblower), recounting horror stories that chill the whistleblowing environment. Without carefully crafted ethics codes and legal protections enacted and enforced, those who could identify wrongdoing are likely to remain silent, allowing corruption to fester. Nonetheless, despite the danger involved, some civil servants with a moral commitment to advancing the public good continue to come forward to reveal instances of illegal, immoral, or inefficient action that endanger public welfare. Strengthening protections with more effective code and legal provisions will help to ensure that more employees will speak out.

This study has limitations, and suggests directions for additional investigation. Although laws and codes of the 50 states and D.C. were examined, as well as survey and interview data from high-level officials in 24 states, the patterns in nonresponding states’ survey respondents and interviewees may yield differing insights. Such findings will corroborate or refute some of those reported here. Although this research reports some numbers of whistleblowing complaints, and how many are verified based on interviews, further work is needed to better determine whether the data here are low, high, or average. Nonetheless, the findings from the content analysis, surveys, and interviews paint a more comprehensive picture of whistleblowing protection in the U.S. states than now exists in the corpus of literature.

Future work by ethics scholars could build on and extend this investigation by focusing on, among other things, collecting and analyzing empirical data on such metrics as whistleblowing complaints filed, the resolution of complaints, satisfaction with the process, magnitude of retaliation claims, the nature and extent of lawsuits filed, the frequency of findings in favor of the employee or employer, and the resulting distribution of rewards and penalties, or other aspects of the process. The 50 states provide a rich setting for testing academic theories and understanding best practices that seek to reduce corruption by providing protection to those who disclose wrongdoing.