A Comparative Analysis of ST/SGB/2005/21 and

The Updated UNDP Legal Framework for Addressing

Non-Compliance with UN Standards of Conduct

In December, 2005, the Secretary General of the United Nations issued ST/SGB/2005/21,
"Protection against retaliation for reporting misconduct and for cooperating with duly authorized
audits or investigations," as one of the first steps in what was to be an Organizational reform
process. The new measure shielded whistleblowers from reprisal and established an autonomous
Ethics Office, in compliance with Paragraph 161(d) of General Assembly Resolution 6011 :

. .. We urge the Secretary-General to scrupulously apply the existing standards of conduct

and develop a system-wide code of ethics for all United Nations personnel. In this
regard, we request the Secretary-General to submit details on an ethics office with
independent status, which he intends to create, to the General Assembly at its sixtieth
session" (Emphasis added).

Throughout 2005, as the UN Office of the Under Secretary for Management drafted the new
policy, the Government Accountability Project (GAP) provided counsel and technical assistance.
The following year, as loopholes and silences in the final version of the policy adopted became
evident, GAP sought to ensure that the interpretation and implementation of ST/SGB/2005/21
(the SGB) would be as comprehensive as possible.

As part of this process, in 2006, GAP developed a checklist of "Best Practices," a guide for use
in formulating whistleblower protection policies at intergovernmental organizations (IGOs).'
The checklist was based on a survey of the practices in the multilateral development banks, at the
United Nations, and on experience acquired through litigation and representation of plaintiffs in
the appeals processes at the IGOs.

During the two years that have elapsed since the implementation of the SGB, a number of
whistleblowers coming forward have been staff members of the United Nations Development
Programme (UNDP) or staff holding UNDP letters of appointment. This, in itself, is indicative
of difficulties at UNDP. When the Administrator announced that the Programme did not
recognize the rulings of the UN Ethics Office, established as part of the SGB, however, the UN
system seemed poised for a significant step backward in the reform process. A review of the
"UNDP Legal Framework for Addressing Non-Compliance with UN Standards of Conduct"
(henceforth the UNDP Legal Framework) - which the Legal Support Office (LSO) has said will
serve as the UNDP equivalent of the SGB - confirms those fears.

In the Legal Framework, dated 20 September, 2007, UNDP sets out its own procedures for
investigating misconduct and retaliation. To address the discrepancies between the two policies,
GAP has prepared a comparison of the proposed whistleblower provisions in the UNDP Legal
Framework and the SGB.

International Best Practices for Whistleblower Policies at Intergovernmental Organizations:" Government

Accountability Project, December, 2006.
 Principal Distinctions between the SGB and the UNDP Legal Framework

Although the UNDP Framework has not yet been finally approved, LSO maintains that its
provisions are currently in use as a guide for investigating retaliation. In that context a
comparative analysis seemed timely and useful. The principal differences between SGB and the
UNDP Legal Framework include the provisions and definitions detailed below.

Statute of limitations: In accordance with best practices for whistleblower policies at IGOs, the
SGB limits the time frame during which whistleblowers may come forward with their
disclosures to six years (paragraph 2.1). No time limit, however, is imposed on reports of
retaliation. However, the UNDP policy states that individuals must report retaliatory action "no
later than 60 days after the alleged act or threat of retaliation has occurred" (paragraph 40).

Experience in both national and international settings shows that whistleblowers are oftentimes
unaware of their rights within a 60-day time frame. According to international best practices for
whistleblower policies, three months is the minimum functional statute of limitations. One-year
statutes of limitations are consistent with common law rights and are preferable. Therefore, the
SGB is the better standard. Moreover, if the consequences of either the corruption disclosed or
the retaliation effected are ongoing, there should be no statute of limitations.

Staff covered: The SGB applies to "any staff member (regardless of the type of appointment or
its duration), intern or United Nations volunteer.. ." (paragraph 2.1) However, the UNDP Legal
Framework excludes from coverage:

(a) UNDP staff members while seconded to a UN agency for acts that occurred during their
secondment or inter-organization exchange to thgt agency.. ..;

(b) individuals who do not have a UNDP letter of appointment;

(c) locally-recruited staff assigned to another Agency, Fund or Programme, who have UNDP
letters of appointment but are considered as staff members of that Agency, Fund or
Programme and are administered on behalf of that Agency, Fund or Programme by
UNDP (such as WFP locally-recruited staff members);

(d) independent contractors working with UNDP under Special Service Agreements (SSA);

(e) persons employed under Service Contracts (SC);

(0 U.N. Volunteers (UNVs);

(g) Interns (paragraph 6).

In terms of coverage, the UNDP Legal Framework is significantly more restrictive than the SGB
and falls far short of standard 5 of the "International Best Practices for Whistleblower Policies at
Intergovernmental Organizations:"
 Coverage for employment-related discrimination should extend to all relevant applicants
or personnel who challenge betrayals of the organizational mission or public trust,
regardless of formal status. In addition to conventional salaried employees, IGO
whistleblower systems should protect all who are applicants for funding or are paid with
IGO resources to carry out activities relevant to its mission. It should not matter whether
they are full time, part-time, temporary, permanent, expert consultants, contractors or
employees seconded from another organization. If harassment could create a chilling
effect that undermines an organization's mission as defined by the Charter and
implementing rules, the reprisal victim should have rights. This means the mandate also
must cover those who apply for jobs, contracts or other funding, since blacklisting is a
common t a ~ t i c . ~

Burden of proof: While both policies require that management prove by "clear and convincing
evidence" that it would have taken an action that appears to be retaliatory absent the protected
activity, the SGB is the stronger policy, as it explicitly states that "the burden of proof shall rest
with the Administration," (paragraph 2.2), a clarification and emphasis that the UNDP Legal
Framework lacks. The UNDP Legal Framework also shifts the burden of proof to employees in
summary dismissal cases (paragraph 2.7.2 0).

Right to due process: As advocates of plaintiffs in the appeals processes at the IGOs can attest,
internal justice systems at these organizations currently are flawed by a lack of autonomy and by
institutional conflicts of interest. Impartiality in the investigation process is particularly difficult
to ensure, but the establishment at the UN of an Ethics Office independent of both the Office of
Human Resources (OHR) and the Office of Legal Counsel was an important step in the right
direction. The Ethics Office, with responsibility for preliminary investigations, was
established to protect the early stages of informal or internal review fi-om improper influences.
Preliminary investigations, if not autonomous, are likely to become investigations of the
whistleblower, as well as of the evidence he or she has produced. This information may then be
used to attack the whistleblower's case and preclude the possibility of a fair hearing in an
impartial forum.

While neither measure is ideal in this regard, the SGB offers a structure of investigation that
better safeguards the objectivity of the process than that provided in the UNDP Legal
Framework. Under the SGB, the Ethics Office alone determines whether aprima facie case of
retaliation exists. Once a credible case of retaliation is found, the Ethics Office refers the matter
to the Office of Internal Oversight Services (010s) for a full investigation (paragraph 5.5).

In contrast, the UNDP Legal Framework assigns responsibility for preliminary inquiries to the
Office of Audit and Performance Review (OAPR), possibly in consultation with OHR. OAPR is
also responsible for the follow-on investigation, if an initial finding of retaliation is reached
(paragraph 45). By allowing consultation with OHR, the Legal Framework potentially

2
Tom Devine, "International Best Practices for Whistleblower Policies at Intergovernmental Organizations,"
Government Accountablity Project, December 1,2006.
Reviews of complaints by departments of human resources, for example, are notoriously conflicted and cannot be
characterized as impartial or independent.
contaminates the initial inquiry, and by vesting both phases of the investigation in the same
department, it minimizes oversight of the first stage of the review by the second.

Moreover, at UNDP, complaints of retaliation in the form of workplace harassment, sexual

harassment or abuse of authority must be reported to OHR, rather than to OAPR (paragraph 28).

Impartial evaluation of whistleblowers' complaints must exclude OHR because retaliation often
occurs as an administrative action, such as transfer, demotion, dismissal, or non-renewal. All of
these actions, and many others, are implemented by OHR. While the SGB took steps to
eliminate this conflict of interest, the UNDP Legal Framework re-establishes it, institutionalizing
a process in which a department implements a personnel action and then evaluates the propriety
of the same action.

Interim relief: Because whistleblower cases can take years to resolve, interim relief should be
awarded as necessary. While both the SGB (paragraph 5.6) and the UNDP Legal Framework
(paragraph 46) provide for this possibility, the Legal Framework leaves the decision to award
interim relief in the hands of the Director, OHR, whereas the SGB invests it in the Ethics Office.
Once again, OHR, which in many cases will have been involved, directly or indirectly, wittingly
or unwittingly, in effecting retaliatory actions, has been charged with suspending or rescinding
them.

In addition, a crucial distinction in language weakens the interim protections afforded by UNDP.
The SGB states that appropriate measures to safeguard the interests of the complainant may be
taken "with the consent of the complainant." The UNDP Legal Framework dilutes this language
by stating that decisions on interim relief will be made "in consultation with the complainant."
This second version of interim relief denies whistleblowers veto authority over the type of
protection afforded them as alleviation for harassment and retaliation. The distinction is critical,
as interim relief measures (for example, transfer or administrative leave) can themselves be used
as forms of harassment or maneuvers designed to isolate whistleblowers and deny them access to
evidence. As such, this relief should only be applied if and when the whistleblower has
expressly agreed to it, and a robust policy will make this qualification explicit.

Retaliation: While both policies refer to retaliation as misconduct, the SGB uses stronger
language and imposes stronger sanctions on the retaliator. Language that appears in the SGB but
not in the UNDP Legal Framework includes:

6.1 If retaliation against an individual is established, the Ethics Office may, after
taking into account any recommendations made by 0 1 0 s or other concerned
office(s) and after consultation with the individual who has suffered retaliation,
recommend to the head of department or office concerned appropriate measures
aimed at correcting negative consequences suffered as a result of the retaliatory
action. Such measures may include, but are not limited to, the rescission of the
retaliatory decision, including reinstatement, or, if requested by the individual,
transfer to another office or function for which the individual is qualified,
independently of the person who engaged in retaliation.
 6.2 Should the Ethics Office not be satisfied with the response from the head of
department or office concerned, it can make a recommendation to the Secretary-
General. The Secretary-General will provide a written response on the
recommendations of the Ethics Office to the Ethics Office and the department or
office concerned within a reasonable period of time.

The comparable section in the UNDP Legal Framework includes the Director of the Office of
Human Resources in the process of formulatingrecommendations to address retaliation.
Including input from an office or department that may have, either actively or passively, been
party to retaliation, introduces a structural conflict of interest into the possibility of obtaining
relief.

Provisions for reporting through external channels: The Legal Framework introduces a
number of qualifiers that do not exist in the SGB, some of them apparently minor. The major
ones are discussed here.

Section 4 of the SGB states that an individual reporting wrongdoing may make a public
disclosure if necessary to avoid:

(iii) Violations of national or international law;

In contrast, the UNDP Legal Framework (paragraph 31) contains the same provision, but with
an added restriction. The Legal Framework enables whistleblowers to report externally if they
are seeking to avert a:

(iii) Violation of national or international laws with immediate adverse impact on life
or property;

The additional phrase introduces debate about whether an adverse impact is 'immediate,' or
about whether a threat to physical safety is actually an adverse impact on 'life.' The simple,
clear-cut intention to violate national or international law is, according to UNDP, no longer
sufficient to justify an immediate disclosure through external channels.

In addition, the UNDP policy (paragraph 32) includes a provision that does not appear in the
SGB and that introduces a restrictive and contradictory interpretation of 'external7 disclosure.
The paragraph potentially undermines the intent of the entire section providing for external
disclosure in specific circumstances:

When circumstances require that such reports be made outside of the established UNDP
internal mechanisms, preference must be given to making a report directly to the
Administrator or to 0 1 0 s .

In the SGB, 'external' disclosure does not mean reports made to the Secretary General or to
010s. While these offices are outside of the 'established internal mechanisms,' they are still
internal. In the UNDP Legal Framework, 'external' reports 'must' be preferably made to
'internal' offices. 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, could find protection here. Moreover, this section of the Legal Framework
(Chapter II, Section 1.2) is entitled "Disclosure of Alleged Misconduct to Entities External to
UNDP," a phrase that illuminates the original intent of the language. The provision permits a
whistleblower, under urgent circumstances, to inform external parties and ensure action. The
reinterpretation of "external entity" to include the Administrator of UNDP appears disingenuous
and lacks credibility

Other Issues of Concern

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

The diluting;of language from the SGB: It is worth noting that the UNDP Legal Framework
often borrows paragraphs virtually verbatim from the SGB, 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 SGB):

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

(a) to receive complaints of retaliation;

(b) to keep a confidential record of all such complaints;

(c) 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
(iii) 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 section, which is nearly identical to section 5.2 of the SGB, 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 potentially undermines the
impartiality of the process. 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.
Evasion of the iurisdiction of the UN Ethics Office: The UNDP policy represents an evident
effort to escape the jurisdiction of the Ethics Office in favor of a less effective and less objective
system that substitutes OAPR, often in consultation with OHR and LSO, for the more
independent body. Replacing the jurisdiction of the Ethics Office with a potentially
compromised process of review and investigation clearly undermines the Secretary General's
and General Assembly's original intent with respect to judicial reform at the Organization.

Section 1.2 of the terms of reference set forth for the Ethics Office states:

The objective of the Ethics Office is to assist the Secretary-General in ensuring that all
staff members observe and perform their functions consistent with the highest standards
of integrity required by the Charter of the United Nations through fostering a culture of
ethics, transparency and a c c ~ u n t a b i l i t(Emphasis
~.~ added)

In rejecting the jurisdiction of the Ethics Office, UNDP evades the system-wide code of ethics,
and, in effect, demonstrates that multiple ethical standards differentiate the Funds and
Programmes. It is particularly ironic that an Organization which formulated the Universal
Declaration of Human Rights accepts for itself a situational code of ethics, fractured for
convenience by the individual Funds and Programmes.

The lack of an impartial svstem of due process:

The UNDP Legal Framework states (paragraph 8):

The Administrator shall decide whether a staff member has committed misconduct, and,
if so, which disciplinary measure(s) should be imposed on him or her, either after referral
of the case to the Disciplinary Committee, or without referral of the case to the
Disciplinary Committee in the event of waiver of disciplinary proceedings, or in the event
of summary dismissal, as appropriate.

For UNDP whistleblowers, this paragraph undermines the possibility of due process and access
to an impartial justice system. While the SGB also vests the authority to accept or reject
recommendations of a disciplinary committee or an appeals committee in the Secretary General,
the independence of the Ethics Office and the fundamental role it plays in determining whether a
given action (or inaction) was retaliatory, imposes greater restraint on this authority. In contrast,
the UNDP Administrator (or Associate Administrator) will make the final decision in all cases,
many of which will reach him or her after including decision-making input fi-om a potentially
retaliatory party (OHR).

In recent years, the IGOs have experienced episodes in which allegations of misconduct have
implicated the highest levels of authority. These experiences have clearly demonstrated the need
for an independent justice system with disciplinary authority over all officials employed by the
Organization if a policy shielding whistleblowers from retaliation is to be effective. No single
individual can be empowered to serve as both defendant and judge in a judicial proceeding,
while claiming that the proceeding is impartial and fair.

Ethics Office Establishment and Terms of Reference, ST/SGB/2005/22.

The duties of the LSO are also troubling. According to the Legal Framework (paragraph 1O), the
director of LSO should receive reports of allegations of wrongdoing, review those reports,
recommend suspension of staff members, and, in the event of a hearing, represent the
administration. The LSO should also participate in determining whether an investigation of
specific allegations is warranted (paragraph 12). 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. To establish a credible shield
for whistleblowers, UNDP must either empower an impartial body to decide whether or not to
pursue an allegation of misconduct or accept the jurisdiction of the existing Ethics Office.

The failure to include the official whistleblower protection policy: Paragraph 22 (m) of the
UNDP Legal Framework for Addressing Non-Compliance with UN Standards of Conduct states
that misconduct may apply to "Retaliatory action against a whistleblower or an investigation
participant or other action in violation of the UNDP policy on the protection against retaliation."
A footnote references Chapter VI, but there is currently no Chapter VI in the body or table of
contents of the UNDP Legal Framework. Presumably, Chapter 11, "Protection Against
Retaliation for Reporting Allegations of Wrongdoing for Cooperating with Duly Authorized
Audits or Investigations," has become UNDP's whistleblower protection policy. This is probably
an oversight attributable to the draft stage of the Framework, and the relative weaknesses in
Chapter I1 have already been discussed.

Weaknesses in Both Policies

Institutional conflicts of interest: Both the SGB and the Legal Framework ultimately leave
decision-making regarding a whistleblower's disclosures and the penalties for retaliation in the
hands of the top officials at the UN Secretariat and at UNDP, respectively. The fundamental
legitimacy of a code of conduct, as well as of a judicial system, however, rests on its inclusive
character and on its impartiality: it must apply equally to all and it must not allow any individual
to intervene improperly in judgments involving others. Officials, regardless of their rank, who
may have been either actively or passively involved in retaliatory activities, must not retain the
authority to determine whether a complaint is valid or not. A whistleblower protection policy, if
it is to be effective, must establish an independent venue external to the Organization where a
whistleblower's allegations may be heard objectively.

In this sense, once a single system-wide policy is adopted that recognizes the authority of the UN
Ethics Office, the policy must be amended to include a provision for external arbitration. Only
this provision gives a whistleblower the real possibility of a hearing before a forum that is
guaranteed to be impartial.

Ignoring the realities of UN internal iustice reform: Overall the UNDP Legal Framework
disregards the developments of the past two years that have moved the United Nations toward an
integrated and impartial internal justice system. The new system will not function as intended if
the Funds and Programmes may select elements that will apply to them and reject others that are
inconvenient. This revision of the SGB as a Legal Framework specific to UNDP appears to be
an exercise designed to accept specific articles of the SGB that are easily applied, while rejecting
the one dimension that represents a difficulty for UNDP management in light of recent findings:
the jurisdiction and applicability of rulings by the UN Ethics Office.

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 SGB, the intention of the General Assembly has been disregarded and
the process of reform has been successfully and significantly subverted.