Who blows the whistle to the media, and why: organizational characteristics of media whistleblowers

INTRODUCTION

Whistleblowers must decide who to alert when wrongdoing is discovered. The social science literature focuses on two types of disclosures: those made internally, within the whistleblower’s employing organization

The societal goals of exposing and reducing misconduct by relying on whistleblowing as a mechanism for organizational control are inconsistent with the disfavor and distrust with which media whistleblowers are viewed.(4) Indeed, the media can provide a key outlet for important information which has been ignored by the persons or organizations charged to respond. The media can also play a vital role when a whistleblower experiences retaliation.(5)

Reluctance to protect media whistleblowers and to value their diselosures also reduces the deterrence value of possible public exposure. Threats of negative publicity have long been used to inhibit wrongdoing. Early in our nation’s history, stocks were a fixture in public squares. The scarlet “A” imposed on Hester Prynne is perhaps the best known literary example of using negative publicity.(6) More recently, the United States Sentencing Commission recognized the importance of publicity as a form of organizational control in its corporate sentencing guidelines.(7) Organizations that establish effective ethics programs, including whistleblower protection and incentives for internal whistleblowing, can escape large fines if convicted.(8) At the same time, the Guidelines provide that negative publicity,(9) among other measures,(10) may be mandated in addition to fines and restitution when a convicted organization has failed to take steps to promote disclosure of wrongful conduct.(11)

Negative publicity is a potentially effective deterrent to misconduct because it can have a detrimental impact on credit-worthiness, recruiting, employee morale,(12) sales, and investors’ perceptions.(13) Given these possible outcomes, as well as the generally low regard with which the public views business organizations, corporations go to great lengths to promote and protect positive public images.(14)

Thus, in the absence of countervailing considerations, the powerful impact of negative publicity should not be undermined by laws that fail to give recourse to media whistleblowers. One such consideration might be evidence demonstrating that whistleblowers who resort to media outlets for their disclosures typically do so because their claims are ill-founded, or for other reasons that undermine whistleblowing’s benefits. Such concerns persist although little attention has been focused on the characteristics of whistleblowers who choose media outlets for their disclosures. This paper examines existing studies on whistleblowers to help determine if media whistleblowers differ significantly from other whistleblowers. If they do not, a change in legislative and judicial approaches is indicated.

The following section of this paper contains a brief examination of the approaches of Congress,(15) state legislatures,(16) the courts,(17) and arbitrators(18) toward media whistleblowers. The authors then set forth their hypotheses regarding the situational variables most likely to lead to whistleblowing to the media.(19) Next, the authors present data from two studies focusing on the relationship between these variables and the incidence of media whistleblowing.(20) Finally, the authors discuss their conclusions regarding legal protection for media whistleblowers.(21)

Legal Protection for Whistleblowers

Statutory Protection

Legal protection for whistleblowers was first extended incidentally(22) by federal laws designed to promote other goal.(23) Most of these statutes did not specify outlets for reporting the wrongdoing.(24) By implication, however, the appropriate recipient of a whistleblower’s report was the agency empowered to deal with the problem addressed by the statute.(25) The courts consistently interpreted these federal statutes as protecting internal and external reporting(26) on the basis that each furthers the congressional purpose of promoting “safety and quality.”(27)

Recent federal legislation incorporating whistleblower protection is often more specific about appropriate channels,(28) commonly favoring external reports to a government ageney.(29) The statute that most clearly protects reporting to the media is the False Claims Act (FCA or Act).(30) First passed in 1863 and significantly revised in 1986, this statute encourages private sector whistleblowing,(31) and generously rewards whistleblowers(32) for bringing a successful suit in the name of the United States against recipients of federal funds who have defrauded the government.(33) The Act specifically allows whistleblowers who first report the wrongdoing to the media to subsequently file suit under the FCA.(34)

In recent years, whistleblowing has gained favorable attention from state legislators, who perceive such disclosures as a means to reduce fraud, misuse of funds, and other forms of wrongdoing.(35) Accordingly, since 1981, thirty-seven states have enacted laws to protect whistleblowers.36 The great majority of these statutes specify appropriate recipients for whistleblowers’ reports.(37) While the laws are notably diverse in this regard, the greatest number prefer external whistleblowing.(38) There is surprising consistency, however, in the view that the media should not be a designated channel.(39) No statute identifies the media as a proper recipient of a whistleblower’s report, fewer than one-third of the state laws protect whistleblowing to the media at any point, and twenty-four of the statutes explicitly exclude this form of whistleblowing from their coverage.(40) These statutory approaches are summarized in Appendix A.

Thus, reporting to the media is encouraged by neither Congress nor state legislatures. Federal legislators have been more willing than their counterparts at the state level to allow whistleblowers to choose between internal and external outlets. Nevertheless, federal statutes that indicated an external preference designated an agency or other governmental body.(41)

Non-statutory Protection

Several non-statutory bases for recovery are available to employee whistleblowers. The First Amendment protects government employees in some circumstances.(42) The public policy exception to the traditional rule may afford relief to employees at will.(43) Finally, collectively-bargained “just cause” provisions may offer redress to whistleblowers whose employment is governed by such agreements.(44)

For government workers, the First Amendment provides one avenue for recovery. Two Supreme Court decisions are universally cited,(45) Pickering v. Board of Education(46) and Connick v. Myers.(47) court faced with an allegation that a government employee has experienced retaliation for whistleblowing will first determine whether the communication at issue involved a matter of “public concern.”(48) If so, the court will balance the employee’s First Amendment interests against the public employer’s efficiency and productivity interests.(49)

The results of several lower court decisions suggest that a communication is more likely to meet the “public concern” threshold if it is directed to the news media

Private employees can seek redress under the public policy exception(52) to the employment at will rule,(53) which is now recognized by a large majority of states.(54) Several courts have employed this exception to protect whistleblowers who suffered retaliatory discharges.(55) Nonetheless, the cases strongly suggest that an internal whistleblower is substantially less likely to prevail on the basis of this claim than one who discloses information to a government agency.(56) Although courts do not usually explain their decisions in terms of the identity of the report recipient, a few decisions have specifically distinguished between internal and external whistleblowers. These decisions contrasted disclosures to government authorities with those made internally, emphasizing the relatively lower social utility of reports in the latter category.(57)

Scant precedent exists concerning whistleblowing to the media.(58) It does not address whether the identity of the report recipient was relevant to the holding in favor of the employer.(59) Nevertheless, a whistleblower who reveals wrongdoing to a reporter communicates indirectly, at best, with public agencies, and there is no guarantee the report will reach them. Thus, to the extent that the public policy exception cases emphasize cooperation with public authorities, their usefulness will be limited for protecting media whistleblowers. Further, a disclosure to a reporter may be perceived as symptomatic of a management dispute,(60) rather than a good faith desire to counter misconduct.(61)

Most employees covered by a collective bargaining agreement are shielded from being discharged without just cause.(62) These agreements, however, have provided surprisingly little protection for whistleblowers against the contention that such disclosures are a manifestation of disloyalty that justify disciplinary action.(63) Arbitrators in several cases considered the identity of the report recipient as one of several factors pertinent to their just cause determination.(64) In these cases, the principal issue was whether a disclosure was made to any external outlet

The foregoing review of legislative, judicial, and arbitral approaches to media whistleblowing strongly suggests that distinctions are drawn among whistleblowers based on their outlets for disclosure. Further, media whistleblowers are the least protected, although the legal decisions exhibit little consistency in their reasoning.(68) Given the media’s recognized power to oversee, influence, and inform,(69) and its unique ability to respond to reports of misconduct in certain circumstances,(70) this result is inconsistent with the societal goals that support whistleblowing: exposing and reducing wrongdoing. The legitimacy of the legal system’s approach is further challenged by the empirical evidence.

FACTORS CAUSING WHISTLEBLOWING TO THE MEDIA

Legal scholarship regarding whistleblowing has focused primarily on identifying circumstances in which employees who have suffered retaliation as a consequence of their disclosures have a cause of action.(71) Social psychologists,(72) in contrast, have focused on the characteristics of whistleblowers and the organizations that employ them.(73) There is no support in the social-psychological literature for the contention that media whistleblowers differ from others in terms of motives. Rather, the literature strongly suggests that a potential whistleblower’s decision to report to the media is a strategic one, based on external circumstances.

Lack of Power Within the Organization

Whistleblowers, by definition, lack power to achieve the organizational change they seek. If they were sufficiently powerful to correct the perceived problem, there would be no need to blow the whistle.(74) Moreover, the less powerful they are – or perceive themselves to be – the more likely whistleblowers are to seek external influence to change organizational behavior.(75) The media is one of the most commonly recognized sources of such influence.

In general, employees who perceive themselves as having power are likely to believe they can influence the organization. Therefore, they are more likely to use internal means to change behavior.(76) Other individuals may perceive themselves to be organizationally powerless. This feeling is common among newcomers, who have not had the opportunity to acquire “idiosyncrasy credits” to provide a cushion of group tolerance for deviation from organizational norms.(77) Thus, new employees are unlikely to enjoy support for their whistle-blowing, and their internal reports are less apt to be deemed credible.(78) Additionally, new arrivals will not understand how to voice dissent or achieve change within the organization as effectively as their colleagues with longer tenure.(79) These factors will influence new employees’ self-confidence in terms of their ability to generate change.

Another factor affecting power is the employee’s position within the organization.(80) Factors bearing on the relative influence of a particular position include supervisory responsibility, job description, or specialized knowledge.(81) For example, if a job involves reviewing corporate actions for compliance with norms or standards – an internal auditor, for instance – the employee who holds that position is more likely to blow the whistle successfully within the organization.(82) Likewise, a person who is an expert in an area, such as a nuclear engineer who alleges unsafe storage practices, is more likely to be credible and gain support for change from co-workers and others within the organization.(83) Finally, the extent to which the employee’s skills or knowledge are important to the organization will affect the employee’s ability to achieve internal change.(84)

Accordingly, we hypothesize that media whistleblowers are more likely to be new or low-level or non-professional employees who lack power within the organization. Their lack of intra-organizational power will encourage them to report externally. Further, they are likely to choose a media outlet for their reports because of the media’s effectiveness in influencing change and because the independent investigation and verification undertaken by reporters will enhance the credibility of their disclosures.

High Risk of Retaliation

The philosopher Frederick Elliston argued that the “dedicated and highly principled employee . . . will not embarrass the company by washing their [sic] dirty linen in public” if there are meaningful internal systems for reporting dissent.(85) External reporting is certainly likely, and perhaps even necessary, in situations where effective internal channels and nonretaliatory policies are lacking. There are three circumstances that are likely to create a perception that an organization is unresponsive, and therefore will encourage whistleblowers to use the media. The first circumstance is where the organization is highly dependent on the practice in question. Organizations respond to threats to their vital interests with rigidity.(86) Resistance to change in such cases may be manifested by cues that exposing the questionable activity will be met with hostility, including retaliation.(87)

Second, a potential whistleblower is more likely to seek external support by disclosing outside the organization when the wrongdoer is influential within the organization. When a practice is questioned, there is commonly a tendency to respond with “retrospective rationality” and a marshalling of forces to justify the challenged decisions.(88) The flow of information(89) may be restricted, and there may be attempts to “kill the messenger.”(90) The wrongdoer’s success in resisting change, suppressing information, and retaliating depends on his or her organizational influence. Thus, when the wrongdoing involves powerful individuals, the whistleblower is more likely to make disclosures to an external recipient, such as a reporter, who is perceived to have clout.

Finally, a climate hostile to dissent will also encourage potential whistleblowers to seek external outlets for their reports.(91) Organizations utilize a variety of mechanisms to signal their openness to dissent: they may establish written policies favoring such communication, conduct surveys or internal audits, hire ombudspersons, or install hotlines or suggestion boxes.(92) If there are few meaningful avenues for dissent, a history of retaliation, or both, employees will perceive that there is little utility in blowing the whistle internally.(93) A whistleblower is then likely to report to an external channel.

Thus, existing studies indicate that the greater the dependence of the organization on the wrongdoing, the less receptive it is of dissent, and the more organizationally influential the wrongdoer, the more likely the whistleblower is to report externally. We hypothesize, further, that once a whistleblower decides to make an external disclosure, the media is the logical outlet because the threat of further exposure may offer a measure of protection from retaliation.(94)

Lack of Meaningful Response

Studies have shown that a primary motivation for blowing the whistle is to correct wrongdoing and get the organization “back on track.”(95) Thus, whistleblowing may be viewed as the pro-social act of a loyal employee.(96) In fact, most whistleblowers first report wrongdoing internally, which is more beneficial for the organization.(97) Failure of the organization to deal meaningfully with the issue leaves the determined whistleblower with little choice but to make an

external report. The likelihood of an external report increases with the seriousness and/or illegality of the conduct in question.(98)

Although whistleblowers have several external avenues for reporting, most of them are governmental.(99) For a variety of reasons, the efficacy of reporting to government channels has been limited.(100) Government entities operate in a political context, and agency oversight has a low priority for most legislators because it lacks visibility and does not result in votes.(101) Historically, government agencies — even designated report recipients such as the Office of Special Counsel of the Merit Systems Protection Board(102) — have failed meaningfully to respond to whistleblowers.(103) Government employees who received inadequate responses when they went “through channels,” especially those at the federal level, have recognized the media as an avenue of last resort.(104)

We hypothesize that whistleblowers who have received no meaningful internal response will choose to report externally if they view the wrongdoing as important.(105) More sophisticated whistleblowers — those who understand the likely limitations of reporting to governmental entities — are likely to prefer the media as an external recipient because of the greater likelihood of obtaining a meaningful response.

Desire for Anonymity

In addition to choosing an outlet, a potential whistleblower must decide whether the disclosure will be made anonymously.(106) Anonymity greatly reduces the possibility of retaliation but it may also undermine the effectiveness(107) and credibility of the report.(108) These difficulties may explain why few employees report wrongdoing anonymously.(109)

Professors Miceli and Near advance three reasons for the limited effectiveness of anonymous whistleblowing. First, the credibility of anonymous whistleblowers may suffer because they are unwilling to face, and be confronted by, the persons they accuse.(110) Second, to the extent that an individual is a credible member of the organization, this advantage is lost through anonymity.(111) Third, it is impossible for the complaint recipient to get additional information from an anonymous whistleblower.(112) We assert further that it is difficult for an anonymous whistleblower to apply pressure on the recipient to respond to the report.

Whistleblowing to the media minimizes these problems. The independence of the media’s investigation of a disclosure lends it credibility. A reporter is free to follow up with an anonymous source, if necessary. The media is also able simultaneously to apply pressure, through publicity, for an effective resolution and to protect the whistleblower’s identity.(113) Finally, the media is perceived to be more effective in protecting its sources’ identities than is the government.(114) Thus, we hypothesize that whistleblowers who wish to remain anonymous will choose media outlets for their reports.

RESEARCH DESIGN

The Studies

Data from two studies were used to test these hypotheses. The largest data base was a study of federal employees conducted by the Merit Systems Protection Board (MSPB) in 1980.(115) The MSPB collected baseline questionnaire data from a stratified random sample of federal employees.(116) The questionnaire was sent to the home addresses of 13,000 employees randomly selected from fifteen agencies

The second data base comes from a study undertaken by Professor James Perry of the School of Public and Environmental Affairs at Indiana University.(119) The study focused on federal workers who used formal channels for whistleblowing (such as inspectors general and the Merit Systems Protection Board’s Office of Special Counsel) and those who used extra-organizational/informal channels.(120) Data was collected from archival records, secondary sources, interviews, and a self-administered survey, and assembled in three data files. Information from the case survey and self-administered survey files was used in the discussion below

Research on whistleblowers has not indicated a significant difference between public and private sector whistleblowers.(122) Therefore, although these studies were primarily based on public sector employees, the results should be generalizable to all whistleblowers.(123)

The MSPB statistics discussed below utilize Fisher’s Exact Test, a standard measure of statistical probabilities.(124) This test was selected because it can accommodate the considerable discrepancy between the number of media whistleblower respondents (twenty-five) and other whistleblower respondents (1047). Respondent groups in the Perry study, however, were sufficiently balanced to permit the use of Chi-square tests in those cases.(125)

Results

Hypothesis 1: Media whistleblowers are more likely than other whistleblowers to be low-level or non-professional employees who lack power within the organization.

The MSPB survey instrument included three questions about job functions relevant to this hypothesis. One inquired whether the respondent “write[s] performance appraisals for other employees.” Media whistleblowers were less likely (p = .067) than others to have this responsibility. This result is consistent with the hypothesis because it suggests that media whistleblowers are not supervisory employees.

Two additional MSPB items focused specifically on responsibility for determining compliance with organizational or other standards. The first inquired whether the respondent’s job required him or her “to conduct or assist in audits, investigations, program evaluations, or inspections for [his or her] agency.” Fewer media whistleblowers (36 percent) than other whistleblowers (46.09 percent) included such activities in their job responsibilities, but this result was not statistically significant.(126) A second item asked whistleblower respondents whether they made the disclosure “because it is a routine part of your job to report such activities (for example, as an auditor, investigator, quality control specialist, etc.)?” In this instance, disclosures of media whistleblowers were less likely (p = .082)(127) than those of other whistleblowers to have been made in the course of performing job responsibilities. This result supports our hypothesis that media whistleblowers are likely to have little organizational influence.

The results of two questions in the Perry study are inconsistent with the first hypothesis. One question, which focused on the whistleblower’s work, identified media whistleblowers as those who were significantly less likely to be performing routinized tasks (p = .011). Responses to a question focusing on the importance of the whistleblower’s position to the continued flow of work showed that media whistleblowers were more likely to be in a critical position (p = .034). These responses suggest that media whistleblowers tend to be higher level employees.

No significant difference was indicated between the responses of media and other whistleblowers to a query in the Perry study whether the whistleblower had any special expertise in the job. Finally, 20 percent of media whistleblowers, in contrast to 9.5 percent of others, indicated that their job skills could easily be replaced, although this result did not achieve statistical significance.

To the extent that pay category or grade are indicative of an employee’s position in the organization, additional items in both studies may be pertinent to the first hypothesis. Analysis of questions in both the MSPB and Perry studies concerning pay category or classification (general schedule, wage system, merit pay, or executive) and pay grade (according to the government’s numerical system), however, revealed no distinctions between media whistleblowers and others.

Thus, the statistically significant results of questions regarding job responsibilities, in terms of the first hypothesis, are inconclusive. Media whistleblowers were less likely than others to have responsibility for supervising others or reporting information about wrongful activities, indicating that they occupy relatively less powerful positions. The opposite indication is given, however, with reference to questions regarding routinization of tasks and importance of the whistleblower’s position to the organization’s work flow.

Hypothesis 2: Potential whistleblowers are more apt to choose the media as an outlet when they perceive a high risk of retaliation, which is particularly likely when the organization is very dependent on the questioned activity, the wrongdoer is highly influential in the organization, or the organization has historically been hostile to dissent.

a. Organizational Dependence on Activity in Question

The seriousness of the wrongdoing is a key factor in the organization’s dependence on it.(128) High dependence is positively correlated with retaliation.(129) Two measures of seriousness are the amount of money involved, and the frequency of the wrongdoing.(130) Accordingly the second hypothesis leads us to predict that whistleblowers would be more likely to choose media outlets in cases where the wrongful activity at issue involved a high dollar amount or where it occurred frequently.

The MSPB instrument asked respondents whether they had direct evidence of the recent occurrence of a series of wrongful activities, as well as the monetary value of each activity. Respondents were also asked to assess the frequency of a second series of wrongful activities that they knew about. The findings were that disclosures were more often made to the media where a higher dollar value was involved with respect to any of five activities: employee(s) stealing federal funds

According to the MSPB study, media whistleblowers were more likely to have had evidence of frequent wrongdoing involving an employee(s) abusing his/her official position to obtain substantial personal services or favors, an employee(s) tolerating a situation that poses a danger to public health or safety, or an employee(s) committing a serious violation of [an unspecified] federal law or regulation. Other outlets were chosen by whistleblowers responding to frequent instances of an employee(s) giving unfair advantage to a particular contractor, consultant or vendor (for example, because of personal ties or family connections, or with the intent of later being employed by that contractor). None of these results, however, achieved statistical significance.

The Perry study also asked respondents to rate the seriousness of the wrongdoing in terms of monetary value and frequency. The incidents reported by media whistleblowers were much more likely (p = .000) than others to involve sums exceeding $100,000 or to occur frequently. Thus, the importance to the organization of the practice in question, assessed in terms of its relative monetary value and frequency, appears to influence whistleblowers to choose media outlets for their reports.

The results of an item in the Perry study asking respondents to assess the extent of organizational change required to remedy the problem identified by the whistleblower also supported the second hypothesis. Media whistleblowers were considerably more likely than others to characterize the change required as significant (p = .000).

b. Wrongdoer’s Organizational Influence

The Perry study included two questions relating to the wrongdoer’s position in the organization. The first asked, “Are members of the dominant coalition directly implicated in illegal, immoral or illegitimate activity by the claims of the whistleblower?”(131) Media whistleblower reports were significantly more likely to implicate members of the dominant coalition (p = .034). Thus, the hypothesis that whistleblowers were more likely to choose the media when they feared retaliation due to the position of the wrongdoer was directly supported.

A second question asked respondents to identify the subject of the whistleblower’s concern. Responses here also suggested that whistleblowers were more likely to choose a media outlet when reporting on top management. Although this measure did not achieve statistical significance, 26.7 percent of media whistleblowers’ reports involved the activities of persons high in the organization as compared to 16.7 percent of those who chose other outlets.

c. Organizational Approach to Dissent

The MSPB instrument included a number of questions relevant to the organization’s attitude concerning dissent. These items focused on whether the organization encourages internal reporting, the availability of outlets for disclosure, and the effectiveness of protection from retaliation.

Eighty-four percent of media whistleblowers, in contrast to 67.63 percent of others, believed that their agencies did not give enough encouragement “to employees who might be inclined to report illegal or wasteful activities within the agency.” While consistent with the prediction that whistleblowers are more likely to resort to the media where the organizational climate does not support dissent, this result was not statistically significant.

With reference to the availability of disclosure outlets, the second hypothesis would lead us to predict that whistleblowers whose employers do not have established channels for communicating dissent, or who are unaware of such channels, are more likely to make media reports. The Perry study asked respondents to indicate whether their organizations had formally established internal whistleblowing procedures. Although a higher percentage of media whistleblowers (34.5 percent) were employed by organizations without internal procedures than were others (13.6 percent), this result did not achieve statistical significance.

The federal government has established several reporting channels for its employees.(132) Therefore, our analysis of the MSPB instrument focused on whether media whistleblowers were distinguishable from other whistleblowers in terms of their knowledge of existing channels. Five questions related to awareness of the whistleblowing outlets. Respondents were asked, for example, “[i]f you observed an illegal or wasteful activity involving your agency, would you know where to report it?” Other questions were more specific: “Have you heard of [The General Accounting Office], and do you know what [this organization) is supposed to do if [it] receives information concerning illegal or wasteful activities?” Although media whistleblowers’ awareness about existing outlets for dissent was lower than those of other whistleblowers in response to three of the five questions, the distinctions were not statistically significant. Thus, our hypothesis was not supported.

We would expect, based on the second hypothesis, that whistleblowers who do not believe they will be protected from retaliation would be more likely to make media disclosures. Five items in the MSPB study dealt with protection from retaliation. One of these asked whether it is “possible for the Federal Government to effectively protect from reprisal an employee who discloses illegal or wasteful activities within his or her agency.”(133) The responses of media whistleblowers were evenly divided between positive (definitely or probably yes) and negative (definitely or probably not) alternatives. Other whistleblowers were slightly more pessimistic (51.20 percent) than optimistic (39.65 percent) on this point, and also more likely to be unsure of their response (9.14 percent, as compared with 4 percent of media whistleblowers).

A second question was a direct, general assessment of reporting outlet effectiveness: “How adequate is the protection the Federal Government now offers to employees who report illegal or wasteful activities within their agencies?”(134) Sixty-four percent of media whistleblowers, in comparison with 50.14 percent of other whistleblowers, believed that this protection “could and should be more adequate.” This result, however, was not statistically significant.

Two questions asked respondents to gauge their confidence in their supervisors and the persons above their supervisors not to retaliate against them if they reported illegal or wasteful activity through official channels. Media whistleblowers were slightly less likely (36 as opposed to 40.39 percent) to feel very confident or confident that their supervisors would not take action against them. With reference to the threat from persons higher in the organization, however, 95.83 percent of media whistleblowers indicated that they were less than or not at all confident that they would be secure from reprisal. Although nearly 80 percent of other whistleblowers shared this concern, the difference between the two groups was statistically significant (p = .031).

Finally, confidence in the Office of Special Counsel of the Merit Systems Protection Board to provide protection from reprisal for whistleblowing was measured. In this instance, media whistleblowers’ perceptions of security from retaliation was lower than that of other whistleblowers (53.18 percent, in contrast to 75 percent), but the distinction was not statistically significant.

In summary, media whistleblowers exhibited a lower level of confidence than other whistleblowers with reference to all four MSPB questions assessing the effectiveness of existing protection from retaliation. The prediction that a potential whistleblower who fears reprisal will choose a media outlet is directly supported, however, only with reference to the item relating to the respondents’ perceptions of vulnerability to retaliation from high levels within the organization.

Hypothesis 3: Internal whistleblowers whose disclosures have not received an effective response within the organization are likely to resort to the media, particularly in cases involving serious misconduct.

The MSPB instrument requested whistleblower respondents to identify their report recipients (one or more than one) from a list of ten internal and external outlets. No indications were given, however, of the order in which the disclosures were made. Thus, although logic would dictate that an individual who blew the whistle to his or her immediate supervisor and to a reporter probably did so in that order, we are unable fully to test our hypothesis with this data.

The questionnaire did ask respondents who had made a report to “sources within [their] immediate work group”(135) to indicate its effect. Nearly 95 percent of media whistleblowers, in comparison to 80.6 percent of other whistleblowers, indicated the problem was not resolved or only partially resolved, or was not expected to be resolved, although it was still under review. This marginally significant result (p = .096) is consistent with the third hypothesis.

The instrument also contained two items that focused on each respondent’s confidence in the Office of the Inspector General (OIG) within his or her agency and the Office of the Special Counsel of the Merit Systems Protection Board to carefully consider reports of wrongdoing. In both cases, media whistleblowers were less likely than others to believe that they would do so

Media whistleblowers’ failure to achieve (or even expect) a constructive resolution to internal reporting and their lack of confidence in formal channels for disclosure may also be relevant to the inconclusive results reported with reference to the first hypothesis. Contrary to our expectations, the responses of media whistleblowers in the Perry study indicated that they were relatively higher level employees.(136) In tandem with the results regarding the third hypothesis, this data supports our contention that knowledgeable whistleblowers — here, employees whose positions are critical to the organization’s work flow and who do not perform routinized tasks — will choose media outlets over governmental channels.(137)

Hypothesis 4: Whistleblowers who seek anonymity will prefer media outlets.

The MSPB instrument included only one item related to anonymity. Respondents were asked to indicate whether they were confident the OIG would protect their identities, if requested. This question is only tenuously related to the hypothesis, as it is addressed to all respondents and not limited to those who would make disclosures only if their identities were protected. Nonetheless, we would expect media whistleblowers to be relatively more doubtful than others of the OIG’s ability to preserve their anonymity. While 62.5 percent of media whistleblowers, in contrast to 51.11 percent of other whistleblowers, were less than or not at all confident that the OIG would keep their identities secret, this result was not statistically significant.

The results of the Perry study contradicted the fourth hypothesis. Non-media whistleblowers were more likely to have blown the whistle anonymously (p = .003). This result, however, is likely to be a consequence of the data collection methods employed by Professor Perry.(138) Virtually all the anonymous whistleblowers included in the respondent pool had made their reports to non-media hotlines. Media whistleblowers, in contrast, were identified through a computer search of news stories and records maintained by a whistleblower activist. Accordingly, none of these individuals blew the whistle anonymously.

In sum, little information exists with which to evaluate the fourth hypothesis. Given the popularity of anonymous reporting to federal hotlines,(139) this is a fertile area for future research. If it is determined that anonymity encourages whistleblowing, opportunities for anonymous disclosure should be made available to private employees, given the media’s effectiveness as an anonymous whistleblowing recipient.(140)

Conclusion

The results of the MSPB and Perry studies provide some support for our hypotheses regarding the circumstances in which a whistleblower will use a media outlet. The data provide much stronger reinforcement, however, for the argument that the disinclination to protect media whistleblowers exhibited by judges and legislators is ill-advised. None of the differences identified between media whistleblowers and others provides a basis for the prevailing legal approach. In fact, several of those differences offer solid support for protecting disclosures to the media.

With reference to organizational climate, the research indicates that employees are likely to resort to media outlets when there has been no effective response to an internal report, when top management is involved in the wrongdoing, or when they fear retaliation from persons above the level of their supervisors. Clearly, the exposure of wrongdoing is especially critical and the availability of a responsive external outlet particularly necessary in circumstances where misconduct continues without correction or involves persons highly placed in the organization. Media whistleblowers’ fear of retaliation from upper management is particularly noteworthy with reference to state whistleblowing statutes, which have uniformly been designed to encourage disclosures by providing protection from retaliation.(141) Ironically, because they disfavor reports to the media, these laws may be undermining their objective.

The analyses also reveal that wrongdoing reported to the media is likely to occur more frequently and involve larger sums of money than that reported to other outlets

The results of our study may also be useful to organizations seeking, for obvious reasons, to minimize the incidence of disclosures to the media by their employees. Actions such as encouraging dissent, providing clear reporting channels, and refraining from retaliation should help prevent such disclosures. More importantly, however, the findings provide a basis for re-examining judicial and legislative approaches to whistleblowers who, for strategic reasons, blow the whistle to the media.

APPENDIX A

[TABULAR DATA OMITTED] (*) Assistant Professor, Law and Public Policy Department, School of Management, Syracuse University (**) Professor of Business Law, School of Business, Indiana University

The authors gratefully acknowledge the generosity of Professor James Perry of the School of Public and Environmental Affairs at Indiana University in making his data available to us, and the valuable assistance of Kathryn P. Ryan. Professor Perry’s study was supported by a grant from the Fund for Research on Dispute Resolution. (1) See Marcia P. Miceli & Janet P. Near, Blowing the Whistle: The Organizational & Legal Implications for Companies and Employees 15 (1992). (2) See infra notes 22-70 and accompanying text. (3) See, e.g., Sissela Bok, Whistleblowing and Professional Responsibility, 11 N.Y.U. Educ. Q. 1, 4 (1980) (“[T]he disappointed, the incompetent, the malicious and the paranoid all too often leap to accusations in public . . . .”). (4) See infra note 35 and accompanying text. (5) See Terry Morehead Dworkin & Elletta Sangrey Callahan, Employee Disclosures to the Media: When Is a “Source” a “Sourcerer”?, 15 Hastings Comm. & Ent. L.J. 357, 396-97 (1993) (discussing circumstances in which media whistleblowing should be encouraged). (6) See Nathaniel Hawthorne, The Scarlet Letter (Harcourt Brace Jovanovich 1984) (1850). (7) United States Sentencing Commission, Sentencing Guidelines ch. 8 (1991). (8) Id. ch. 8C2.4-.5

media, unless the action is brought by the Attorney General or the person

bringing the action is an original source of the information. Id. (35) See, e.g., Hearings on 5542, An Act Protecting Employees who Disclose Employer Misconduct, Before the Senate Comm. on Labor, (Mar. 1, 1982) (comments of Connecticut State Rep. Kiner)

The following states more generally require disclosure to a public body: Arizona, Ariz. Rev. Stat. Ann. [sections] 38-531 (1985) (protection for public employees only)

North Carolina’s statute uses language that could arguably be interpreted as encompassing third parties: “It is the policy of this State that State employees shall be encouraged to report verbally or in writing to their supervisor, department head, or other appropriate authority . . . .” N.C. Gen. Stat. [sections] 126-84 (1989). The tenor of the statute, however, clearly contemplates protecting whistleblowing only to certain entities, so it was included in this category.

Kentucky’s statute is less clear. It lists a number of state executive, legislative, and judicial officers and their employees as appropriate whistleblowing recipients, and then states, “or any other appropriate body or authority ….” Ky. Rev. Stat. Ann. [sections] 61.102(1) (Baldwin 1986). No definition is supplied for “other appropriate body or authority,” so it will be left to the courts to determine whether to read the last phrase in light of the list going before it and demand that it be some governmental unit, or to take the plain meaning approach and allow whistleblowing to “appropriate” third parties. (41) Even the False Claims Act (31 U.S.C. [sections] 3730 (1988)), which specifically mentions the media, only allows it to be a recipient

Two other judicially created exceptions to the employment at will rule have received more limited acceptance. The first recognizes a contract-based cause of action arising from promises implied in fact, often from employee handbooks and personnel manuals. See, e.g., Touissaint v. Blue Cross & Blue Shield, 292 N.W.2d 880 (Mich. 1980)

The conflicting interests of employer and employee in this context are acknowledged in arbitration cases: “[n]either party has an absolute right in this regard: an employee cannot expect to disparage and harm an employer and retain his employment, nor can an employer stifle all public expression of dissatisfaction by its workers.” Ace Hardware Corp., 1981-2 Lab. Arb. Awards (CCH) [paragraph] 8577

Most of these studies and many others are discussed in Miceli & Near, supra note 1, which provides a timely and authoritative review of the whistleblowing literature, and from which much of the conceptual framework for the following hypotheses is drawn. (74) As noted by the leading organizational behaviorists in this field, “[t]he whistle-blower lacks the power and authority to make the change being sought and therefore must appeal to someone of greater power or authority.” Miceli & Near, supra note 1, at 15

First, no studies are known that demonstrate the impact of differences in

public and private sector environments or individual differences on whistleblowing.

Second, [Professor Malin, supra note 591 has shown that the presumed

gap between the legal protections afforded public and private sector

whistle-blowers is narrowing rapidly. Third, with regard to research on

differences between the sectors, organization theorists frequently have included

government agencies and departments and their members in their

samples, and often they have empirically demonstrated similar findings for

public and private sector participants [citation omitted]. Fourth, the organizations

included [in the MSPB study] represent a wide variation in mission

and goals, and they range in size from fewer than 1,000 to over 200,000

employees, which suggests that there may be greater similarity between

certain of these organizations and private sector organizations than among

the 15 agencies included [in the MSPB study].

Finally, and perhaps most importantly, because the generalizability of

findings is an issue that can be addressed only through further, careful

empirical research, it is incorrect to assume that because a sub-population

was used this subpopulation cannot represent the general population. For

example, one would not assume that research using male subjects cannot

provide insight into the behavior of working people in general. Miceli & Near, A Discriminate Analysis, supra note 73, at 691-92. (123) See Perry, supra note 74, at 23. Further research comparing public and private sector whistleblowers is needed. (124) The Fisher Exact Test, like the chi-square test (see infra, note 125) is a method used to assess whether results can be deemed statistically significant as opposed to occurring by chance. When small numbers are involved in a sample, the true level of significance of the chi-square test is less than the chi-square indicates. The Fisher test corrects for this discrepancy. 236 (2d ed. 1980). (125) The chi-square test is a method used to assess whether results can be deemed statistically significant as opposed to being the result of random occurrence or chance. It is used when assessing frequency data comparing the effects of two variables, and there are two groups on each variable. The chi-square test establishes whether the variables are related. If they are, it is considered statistically significant. James L. Bruning & B.L. Knitz, Computational Handbook of Statistics 207-09 (1968). (126) See supra note 125. (127) “P” is the probability that the relationship would occur by chance. So, for example, .01 would indicate that this relationship would occur by chance in 1 in 100 cases. (128) Miceli & Near, Supra note 1 at 188. The hypothesis is “that the organization would not knowingly continue serious wrongdoing for long unless it were highly dependent on this wrongdoing.” Id. (129) Id. at 191. (130) Perry, supra note 74, at 32. (131) Members of the “dominant coalition” were those who belonged to “the top management team at either the agency or unit level . . . .” Id. at 31. (132) See, e.g., supra note 29 (discussing the Office of Special Counsel of the Merit Systems Protection Board). (133) Emphasis appeared in original survey question. (134) Emphasis omitted from the survey question. (135) Emphasis omitted from the survey question. (136) See supra discussion in section IV.B., Hypothesis 1. (137) See supra notes 99-105 and accompanying text. (138) In describing the respondent pool in his study, Perry noted that anonymous whistleblowers were under sampled. Perry, supra note 74, at 28. (139) See id. at 25 (from 1981-1986, federal hotlines received an average of 20,000 complaints per year). (140) See supra notes 113-14 and accompanying text. (141) See Dworkin & Callahan, supra note 5, at 361-62.