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Whistleblowing

Holding the line, speaking up and whistleblowing

At CFA UK we recognise that holding the line, speaking up and whistleblowing are very important, but often difficult activities. 

To assist members with this subject, CFA UK has developed this introduction which covers the following:

What are holding the line, speaking up and whistleblowing?

The defining feature that unites all three of these potential courses of action is the attempt by a person, often an employee, to ensure that they are not breaching important duties and that these are not being breached by those over whom they do not have direct control (often co-workers and superiors). 

Upon becoming aware of a possible breach of duty in the professional context, the individual may "speak up", questioning the activities of those involved. If encouraged or instructed to participate in the suspected wrong-doing, the person may "hold the line" by refusing to so act. Finally, should the individual prove incapable of addressing the problem in a low-key manner, he or she may "blow the whistle", either by contacting those in positions of authority or, in the most extreme cases (where other avenues have either failed or are impracticable), by making their concerns public.

Of the three terms "whistleblowing" is the most commonly used, and is often employed generally to refer to the set of circumstances with which we are concerned here.
 

Why is this such a difficult topic?

We have provided a number of historical examples of successful whistleblowing here. The list of cases includes individuals who were extremely brave and who succeeded in exposing, and halting, substantial wrongdoing. They were, in many cases, recognized for what they did, and are sometimes referred to as heroes. What, then, makes this a difficult topic? 

It is important to stress the selective nature of the list. What are not included are the many cases of people raising concerns where initial suspicions were not ultimately borne out. There are also cases where people made unsubstantiated accusations for improper purposes. Even in the more positive cases we have referenced, the experience of standing tall often took a very large toll on the individuals concerned (and those around them).

"Whistleblowing", "speaking up" or "holding the line" in the professional context is a difficult topic for a number of reasons. Some of the key reasons are summarised under the following general headings:

  1. Conflicting duties
  2. Knowledge imbalances/deficits
  3. Power imbalances and high personal stakes
  4. The potential for conflicting motivations

 

Conflicting Duties

Conflicting duties are most evident in the employment context. An employee owes duties to co-workers, to superiors, to his/her employer more generally and to clients. At the same time CFA Charterholders owe duties to uphold the Code of Ethics and Standards of Professional Conduct, and we all owe both moral and legal duties as members of society. Generally these duties will support each other, but in some cases (and most specifically in the sorts of cases we are concerned with here) they can actually come into conflict. It may be very difficult to know how to proceed in such circumstances.

 

Knowledge Imbalances/Deficits

"This should keep John quiet", the CFO says to her PA as she hands over a small satchel. Hearing this may raise suspicion. If there is cash in the satchel destined to line the pockets of an inquisitive (but corrupt) auditor that suspicion would be well-founded. If, however, there is an iPad loaded with games, destined for a young child who is sitting (less than entirely patiently) in the next room then our initial concerns would be unfounded.

In our professional lives we are often not able to see the whole picture. We are privy to only some of the facts. This is especially true when we are not the central controller/coordinator, but are rather fulfilling a more specialised role. We may inquire when our suspicions are raised. It may, however, be inappropriate that we should know everything. Imagine that we asked the CFO about the satchel (in the example above). The response, "there is no need for you to worry about that", may exacerbate concerns. But what if the satchel contains a contract for John, a co-worker, providing a substantial pay rise? That is our employer’s prerogative, and would generally be none of our business.

The problem of who can and should judge in professional contexts is a thorny one. Employees who see something that they feel may not be right have the difficult task of trying to determine what they need to know to decide their own correct course of action. They must try to obtain this information without gaining access to information which it would be inappropriate for them to access.

Adding to the difficulties already identified, where initial suspicions are justified, it may well be that someone else is knowingly acting in an inappropriate manner. That person is likely to start with a substantial informational advantage and may well use this to defend his or her position. Such imbalances are likely to be especially pronounced when the malefactor is a manager or coordinator.

 

Power imbalances and high personal stakes

Employees are, in meaningful ways, dependent on their employers. Much of an employee’s material and emotional well-being can be tied up in employment (and career more generally). Employees often deeply value the social aspects of employment. Being accepted by, and integrated into, a work team is for many a key part of the affirmation and support that employment provides. An employee’s family will also often be dependent on the professional success of a "breadwinner". This will generally place additional pressure on an employee. All this can be put in jeopardy when an individual finds themselves exposed to a potential breach of basic duties by others in the professional context. Most people would prefer to do the right thing. The pressure to either turn a blind eye, or to actively participate can, however, prove very strong given the high stakes. The distress felt by an employee who is being put upon will generally be far more serious than that felt by a large firm when it dismisses (or freezes out) an employee.

The potential damage to an individual faced with a moral dilemma in a professional context can be great, and his/her power will often be relatively constrained. This obviously increases the likelihood that an employee may not stand up to pressure to bend ethical standards. Concerns are magnified when one considers the likely reaction of a potential wrongdoer and his or her relative strength. As noted in the examples provided earlier, those convicted of fraud or other crimes often not only lose their employment but also their reputation and their freedom. The reaction of people confronted with an accusation of personal or collective wrongdoing is likely to be somewhere between strong and extreme. The person concerned may be a superior with substantial power, or the circumstances may implicate a group of people, with both numbers and power on their side. Not uncommonly the reaction will be an attempt to comprehensively discredit a person raising awkward questions.

 

The potential for conflicting motivations

In our professional lives it is not uncommon for us to find ourselves in competition, or even conflict, with others. Indeed we are encouraged to take the position of adversary/competitor in many cases. Such relations may lead our motives to be questioned when an ethical concern is raised. Are we exaggerating something to "get back at" or discredit someone, or are the concerns valid? Even if the concerns are valid, a complaint brought with mixed motives can appear tainted (and receive a less favourable hearing as a consequence).

An example of the problems under consideration here may have occurred in the Madoff case, referred to above. When Harry Markopolos took his concerns to the New York Office of the SEC he was questioned about his former employer’s competitive relationship with Madoff. The fact that his employer had been a competitor may have tainted his approach in the eyes of those considering Markopolos’ concerns.

Obviously where the key relationship is that between manager and subordinate suspicions will be exacerbated. Where an employee is dismissed and he or she claims to have uncovered wrongdoing a polarisation often occurs in the perspectives adopted by third parties. Some tend to assume that a disgruntled former employee is merely trying to exact revenge on an employer. Others more readily suspect the employer of trying to discredit a brave employee who had discovered malfeasance. There are, of course, other possible interpretations, but our minds typically seek out the extremes at the end of the spectrum. 

 

 

Historical examples of successful whistleblowing

  • During the US War of Independence two naval officers, Samuel Shaw and Richard Marven, blew the whistle on the torture of British POWs by the commander-in-chief of the Continental Navy. The Continental Congress (early US parliament) then enacted a whistleblower protection law (in 1778) and undertook to defend the officers in a defamation suit which had been brought against them.
  • W. Mark Felt, also known as “Deep Throat”, was Associate Director of the FBI. He made information public, blowing the whistle on the Nixon Administration’s cover-up of its involvement in the Watergate building break-in of 17 June 1972. The scandal eventually led to the resignation of President Nixon (the only US president to resign to date).
  • Christoph Meili was a night guard at the Union Bank of Switzerland. In 1997 he blew the whistle on the destruction of records relating to assets lost by Holocaust victims during the Second World War. He was subsequently granted political asylum in the US (an investigation was launched against him for the breach of banking secrecy in Switzerland but it was ultimately dropped).
  • In 1999, an independent financial fraud analyst, Harry Markopolos, believed he had uncovered a likely fraud at Bernard L Madoff Investment Securities LLC. After research he blew the whistle by contacting the SEC. He continued to contact the SEC over the following years. Finally, on 11 December 2008, Madoff was arrested and charged with securities fraud. Madoff pleaded guilty and was sentenced to 150 years in jail. When Markopolos first raised his concerns with the SEC the size of the Madoff fund may have been as little as billion. By 2008 it had grown to billion. Harry Markopolos detailed his experiences in his book, “No One Would Listen: A True Financial Thriller”.
  • In the summer of 2001, Sherron Watkins, Vice President for Corporate Development at Enron, spoke up. She sent an email to the CEO Kenneth Lay regarding an “elaborate accounting hoax” she believed she had identified. Her efforts did not result in the response she had expected. Her hard drive was confiscated and her desk was relocated to a back corner of the office. Four months later Enron filed for bankruptcy. She was named a TIME “person of the year” in 2002. Further details about the Enron collapse are provided in Bethany McLean’s book, “The Smartest Guys in the Room: The Amazing Rise and Scandalous Fall of Enron”.
  • In 2002, Vice-President of Internal Audit at WorldCom, Cynthia Cooper, began to ask questions about certain of the firms accounting practices. She was chided for snooping by the CFO. Sensing something was wrong she launched an investigation and uncovered a multibillion dollar scheme to manipulate reported earnings. The CFO ultimately pleaded guilty on multiple counts and testified against WorldCom CEO Bernie Ebbers. Ebbers was later sentenced to 25 years in jail. Cynthia Cooper wrote a book, “Extraordinary Circumstances: The Journey of a Corporate Whistleblower”, outlining her experiences.
  • From 2003, Senior Nurse Toni Hoffman, working at the Bundaberg Base Hospital in Australia, became concerned about the work of a surgeon, Jayant Patel. After raising her concerns with management, and failing to get satisfactory responses, she contacted her local MP. Dr. Patel ultimately pleaded guilty to two fraud changes. Toni Hoffman was awarded the Order of Australia medal.
  • In September 2011, Michael Woodford was appointed the first non-Japanese CEO in Olympus Corporation’s history. He was dismissed from his position the following month after raising questions about certain financial transactions. Olympus subsequently admitted hiding .7B in losses over two decades. Woodford sued and achieved a reported £10 million settlement. He wrote about his experiences in “Exposure: From President to Whistleblower at Olympus”.

Where can I obtain further assistance?

For those who find themselves in a position of having to hold the line, speak up or blow the whistle, you may want to consider some of the suggestions we have included here.

There are a number of sources of useful information for those who find themselves in a position of having to hold the line, speak up and/or blow the whistle at work.

 

Citizens Advice Bureau

If your concern is primarily a personal employment question, you may find reviewing the material provided by the Citizens Advice Bureau useful. 

Actuaries Whistleblowing Guide

If your concern relates to the interests of others, we recommend reviewing the Actuaries Whistleblowing Guide. CFA UK will be developing a full guide to whistleblowing, but in the meantime, we consider this guide a helpful starting point. Its guidance should only be followed where members independently conclude that the pointers provided are both relevant to and appropriate for their situation.

 

Personal assistance and advice

You may find after reading the material above that you need more personal support. If your concerns are of a more serious nature we suggest contacting Public Concern at Work (PCaW). CFA UK is a sponsor of PCaW and the organisation provides the following dedicated line to our members: 0800 112 4984.

 

Contact us

In addition to this, please do not hesitate to contact the CFA Institute at ethics@cfainstitute.org or the CFA UK Ethics Committee at ethics@cfauk.org

 

Further suggestions

The discussion in this introduction is not designed to determine who is right in any particular case. It cannot by itself answer the questions that someone with an ethical dilemma at work may well have. What it can do, however, is to provide some context, perspective and comparative guidance for a potential whistleblower. It can also prompt the asking, and answering, of helpful questions. 

Examples might include:

  • What do I know that concerns me?
  • Looking at the facts as I understand them, what duties may have been/may be being beached, and by whom? (Be as precise as possible)
  • Whose interests may be adversely affected by the breach(es), and how seriously? (i.e. Who stands to lose, and what might they lose)
  • What don't I know, and what might I not know? ("Known unknowns" and "speculated unknowns")
  • What relevant/determinative information might it be appropriate for me to obtain, and how might I obtain this in a ethical, legal and non-confrontational manner?
  • Are my motives mixed or pure?
  • If my motives are mixed, am I the appropriate person to pursue my concerns, or is there someone else who is more appropriately placed? 

These are just some of the initial questions that may be asked, taking into account the contextual realities that make whistleblowing a difficult topic.  As a first step we suggest taking the time to write out all the salient facts, as you see them. Try to put yourself in the shoes of all the people involved. Understand as best you can where each person is coming from and why they are acting in the way they are acting. Consider carefully whether the concern you have is one that involves primarily your personal interest, or whether it imports questions of a broader organisational, industry-wide or general social interest.

In time CFA UK will be developing further guidance for our members. For now we hope very much that this context setting will be useful. We have also added some basic resources and materials here which will help members decide on the next steps once initial questions such as these have been asked and answered. 

Whistleblowing is a very important, but often also a rather difficult activity. We explore some of the reasons for the difficulty whistleblowing engenders in the 'Why is this such a difficult topic?' section above.

If you feel that you may be in a position where compromises are being demanded of your professionalism and after carefully considering all the circumstances, you feel that you are in a position where you might need to speak up, hold the line or blow the whistle, please visit the 'Where can I obtain further assistance?' section above.

We hope very much these materials will prove helpful. We hope to upgrade the material here over time.

If you have suggestions for improvements we would be very keen to hear from you. Please do not hesitate to email us on ethics@cfauk.org.

 

Information

This information on Holding the Line, Speaking Up and Whistleblowing is not meant as a substitute for proper legal advice and no reliance should be placed upon it other than as general guidance. We have signposted in this introduction where you might find sources which set out your legal rights in detail.