Public institutions and private companies with over 50 employees will be required, starting from December 2021 and December 2023, respectively, to establish dedicated whistleblowing mechanisms and procedures that guarantee, among others, high safety standards, anonymization procedures for whistleblower data, and a proper management of whistleblower reports. These requirements are part of the European Directive no. 1937/2019 on whistleblower protection, that must be transposed during this period in the Romanian legislation.
We will be publishing a series of interviews concerning the state of whistleblowing in Romania. The series continues with Radu Nicolae, the president of the Syene Center for Education and regional coordinator (for Eastern Europe) of the network of local research correspondents on corruption developed by the European Commission. Radu holds a PhD in Political Science, is a certified main auditor for the ISO37001 anti-bribery management systems standard and has been carrying out projects in the field of preventing / combating corruption and investigating organized crime (human trafficking, cybercrime, smuggling) for over 17 years. In 2010, Polirom (publishing house) published his volume “Corruption and anti-corruption policies”. Between 2003 and 2017 he coordinated the public integrity program of the Center for Legal Resources and was an associate professor at the Faculty of Political Science within SNSPA, where he taught the course “Corruption and public anti-corruption policies”. He was the promoter of social reuse of confiscated property. He has collaborated as a consultant or expert with the Ministry of Internal Affairs, the Superior Council of Magistracy, the Ministry of Regional Development and Public Administration, and annually publishes articles in scientific volumes in the country and abroad.
What were the pandemic’s effects on whistleblowers?
The pandemic arrived in a moment of political change in Romania. The Orban government was just instated in November 2019, and in March 2020 we already were in a state of emergency. So the fear of the unknown, of getting sick, of losing your job and the uncertainty of the future generated by COVID-19 – all of these combined in a very unfortunate way with a political agenda geared in a very obvious way towards controlling appointments for any leadership role at the local and central levels. All political parties had this agenda of politicising public institutions, more or less aggressively. And this obvious and excessive politicization, without any criteria based on competence, was doubled by a vague reforming agenda, of neoliberal origins – privatization, deregulation, reduction of social benefits, layoffs from public sector (a good example is the failed experiment to reorganize the Public Works Ministry and the Authority for the Digitalization of Romania). In this context, in the public sector we felt a higher degree of discontentment which led to a search of solutions for all these abuses, whistleblowing being an instrument used by many state employees. Relevant cases include those documented by Recorder (Alone against the Party, New disclosures on the politicization of the National Administration of Romanian Waters: the ‘political beast’ and the waitress hired as an engineer), by Libertatea (Harassment scandal in the Romanian government! An SGG employee accuses one of her bosses, a PNL donor, that he’s terrorizing her), by Newsweek Romania and also the cases of medical personnel, under the protection of anonymity or with assumed identity, that exposed the abuses, the corruption and the inefficiencies in the handling of the pandemic. We can say that the pandemic strengthened whistleblowing in the public sector and showed how useful it can be as an instrument for the protection of the public interest. Unfortunately, whistleblowers from the public sector are still facing drastic sanctions for their acts. They are wrongfully fired and the legal protection measures are ignored by those who should apply them. In the private sector, the furlough crisis generated did not encourage whistleblowing, especially because employees from the private sector do not enjoy the same legal protections as those from the public sector.
What’s the main benefit brought by Directive 1937/2019 on whistleblowing?
I think that the main positive effect of the directive will be establishing similar protection measures for all whistleblowers, from public and private sectors. The directive brings many new and necessary elements, like the creation of an independent authority to support whistleblowers or the requirement to establish separate channels for whistleblowing reporting in public and private entities. I hope that the new legislation will help the institution of the whistleblower to be better understood in the organizational environments in Romania.
What are the competent public authorities and what should they do to make sure that whistleblowing is more than just a concept in a nonfunctional legislation?
It’s very important which public institution will have this competence to support whistleblowers and to certify that they are protected. That institution should have a high degree of actual independence, a competent staff, and the respect to be able to impose a tone in society. It’s also very important how all the other institutions or authorities with attributions of control or prosecution will respect the rights of whistleblowers. Not least, another crucial aspect is the way in which each entity will understand to develop its internal whistleblowing channels. Whistleblowers speak to those they trust. If the entity is using its internal reporting channel to punish whistleblowers, like we see now in public institutions in Romania, it’s clear that no whistleblower will use that instrument. Internal reporting channels must be handled by competent and independent staff, ensuring the highest standards for confidentiality, under the threat of dissuasive sanctions for those who expose whistleblowers or punish them.
How can we change the general perception on whistleblowing, which is too often associated with snitching?
The general perception is hard to change. First, we must invest a lot of resources in training employees and managers from the entities under the scope of the Directive about what is and what isn’t whistleblowing, by debating various cases and explaining the internal mechanisms and guarantees. Then we must invest in the development and constant improvement of internal reporting channels. Just having a designated person and an e-mail address does not make an internal reporting channel. We need to develop internal procedures, internal structures and ways of managing reports that focus on the problem signaled by whistleblowing, not on the person making it. Whistleblowing brings to light irregularities that otherwise accumulate in time and can destabilize an organization. Silence only covers abuses and perpetuates a harmful way of doing things, discouraging performance. Think about the recent whistleblowing reports about the politicization of public institutions or the corruption in the health system. If these problems are not known and we don’t address them in time, they can lead to tragedies. But if we can consolidate a practice of whistleblowing that actually has an impact and solves things, and doesn’t lead only to whistleblowers being harassed by their bosses, as we see now, then the general perception will change in time.
How does technology help whistleblowing?
Technology, the use of special apps, helps a lot to ensure the confidentiality of the whistleblower, at least in the initial phases of internal investigations. It isn’t easy, for anyone, to make a report today in the organization they work in and the next day to become a paria in the eyes of the colleagues and a harassment target for management. Such apps have a stricter regime of access and allow a secure flow of information. The dialogue with the whistleblower is done, in the beginning, only through the application, for an objective evaluation of the merits of the case brought forward. Last but not least, the use of such apps offers a better way to audit the organization in cases where the rights of whistleblowers were violated. The app can show who, when and how they used the information provided.
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