Cayman Islands Complaints Commissioner Nicola Williams has launched an investigation into whistleblowing in Cayman’s civil service and her findings are horrific.

She said 80% (4 out of 5) civil servants who report wrongdoing are fired.

“Some people who want to characterise or disparage whistleblowers saying they’re snitches they’re traitors, they’re grassers and describe them in derogatory ways. Whereas reporters of wrongdoing are what they are people who report what they observe,” she said. “They should be encouraged to report. They shouldn’t have to worry about being dismissed. But there are lots of other ways to punish people short of dismissal.”

PHOTO: Deputy Governor and Complaints Commissioner at ICP Seminar

Franz Manderson, Cayman Islands Deputy Governor and in charge of the Civil Service has said he cannot comment on the Complaints Commissioner’s Report as he has had no time to read it.

The following is the introduction and a summary only of her report that is 64 pages long:

“An investigation   to ascertain whether there are adequate protections   or protective measures for Reporters of Wrongdoing  (also known as Whistleblowers) within the Cayman Islands Government – including, but not limited to, legislation; policy; and work culture custom and practice.”

COMMISSIONER’S INTRODUCTION

In 2013, the issue of whistleblowing was reported on widely across the globe- in particular the cases concerning Bradley Manning and Edward Snowden. But this is not a modern problem; in September 2013, an article in the Sunday Times described Col. Georges Picquart, a former head of the French army secret intelligence service, as ‘The Original Whistleblower’ for his part in the libel trial of the novelist Emile Zola, who had written about the 1894 Dreyfus affair.

Whistleblowing was one of the matters examined and reported on in the 2008 Clifford Report.   However, despite the recommendation in this area, there is still little or no protection for potential whistleblowers, or reporters of wrongdoing, who are employed by the Cayman Islands Government.

Whistleblowing recommendations have been made before by the OCC since the Office was established in 2004 – most recently in the OCC Reports on Pensions  (201 0) and Health and Safety in the Construction Industry  (2012), both of which stated that the law should be changed to allow penalties for victimization in order to protect whistleblowers -but these concerned discrete government entities.  The absence of a comprehensive, safe, confidential and effective process, underpinned by legislation which is robustly enforced, does not just affect government employees and their families; whistleblowing protection for both the public and private sector makes good business sense. For example, in November 2012 Forbes magazine ranked New Zealand first on its most recent list of the Best Countries for Business thanks to a transparent and stable business climate.  According to Phil O’Reilly Chief Executive of Business New Zealand, “New Zealand’s high trust public sector is its greatest competitive advantage.”

All recommendations will be monitored for compliance.

Nicola Williams

Complaints Commissioner

EXECUTIVE SUMMARY

a) TERMS OF REFERENCE

As stated on the Title Page, this is “An investigation to ascertain whether there are adequate protections or protective measures for Reporters of Wrongdoing (also known as Whistleblowers) within the Cayman Islands Government.”

The Terms of Reference for this Own Motion Investigation and Report include, but are not limited to, the following:

•          Legislation – existing legislation and the adequacy of same; is new legislation needed, and if so, what?

Policy what, if any, policies currently exist?  Are they adequate? Are new or additional policies needed?

Current work culture, custom and practice  – is they’re an existing work culture that leads to a tolerance of wrongdoing in the first place?  What actually happens to whistleblowers in each government entity?  Are investigations carried out? If so are they properly conducted in accordance with existing policy, rules of Natural Justice, and/or Human Rights?

Best practice from other jurisdictions.

b) FINDINGS

1.         FINDING- Civil and Public Servants, whether Caymanian or non-Caymanian, are extremely reluctant to report wrongdoing both for fear of reprisal, either direct or indirect  (i.e., fear of repercussions on family members) and because of a strongly held belief that the wrongdoer will not be punished.

2.         FINDING- Whilst Civil Servants, past and present, who were interviewed for this Report recounted many instances of intimidation, victimization or reprisal against whistleblowers, civil servants at Chief Officer level and above largely claimed to be unaware of any such issues.

3.         FINDING- There is no effective and rigorously enforced whistleblowing policy within the Cayman Islands Government. The absence of it undermines the ability of civil and public servants to fully comply with Part II of the Public Service Management Law (currently 2013 Revision).

4.         FINDING- The proper treatment of whistleblowers is a “good governance” issue, as well as a human rights issue. This also has an impact on private sector business as well.

5.         FINDING- The protection from victimization will depend on the robustness of the body to which the whistleblower is reporting.

c) RECOMMENDATIONS

Law

1.         RECOMMENDATION- Enact stand-alone legislation to deal with whistleblowing as in Jamaica, Australia, New Zealand and elsewhere (see Section 13 of this Report). Although, according to senior lawyers employed within the Government Legal Service, there are a few sections in individual laws that could be relied upon by whistleblowers, the OCC is firmly of the view that people should not have to trawl through legislation to cherry-pick sections of applicable legislation, which is especially difficult for ordinary members of the public, and does not assist transparency. The protection should extend to volunteers as well as to employees and others receiving payment for their services.

2.         RECOMMENDATION- There should be a Positive Duty to Report as per the

Money Laundering and Anti-Corruption Laws.

Civil Service Policy and Practice

3.         RECOMMENDATION- Change the culture of the Civil Service to encourage whistleblowing and support whistleblowers – to see whistleblowers properly as Reporters of Wrongdoing.

4.         RECOMMENDATION and FINDING- Hand in hand with 3 above is accountability for the perpetrators of wrongdoing.  If they are not appropriately punished no one will come forward.

5.         RECOMMENDATION- Government should draft a Whistleblowing Policy document containing the points raised in Section 8(b) of this Report.

6.         RECOMMENDATION- Keep the Public Service Values and Public Servant’s Code of Conduct front and centre for all who work in any government entity or carry out government business, even if not directly employed by government.

7.         RECOMMENDATION- Establish a confidential hotline or tip line for whistleblowers, properly funded and resourced on an ongoing basis.

8.         RECOMMENDATION- Confidentiality for whistleblowers must be ensured.

Public Education and Outreach

9.         RECOMMENDATION- Establish a programme of public education to advise people on what amounts to whistleblowing, and as to what legislation and protections are currently, or will imminently be, in place.

Other

10.  RECOMMENDATION- consideration should be given to a Government Minister holding the portfolio for the Public Service and Integrity, in much the same way as Australia.