Author: Michael Kalichman, 2001 Contributors: P.D. Magnus, Dena Plemmons Updates: Rhiannon Kennard, 2016

While this obligation might be met by formal reporting of the alleged misconduct, this is only one of many paths open to the potential whistleblower.

Definition

According to the 2010 definition from the US Office of Special Counsel, a whistleblower discloses information he or she reasonably believes evidences:

• a violation of a law, rule, or regulation
• gross mismanagement, gross waste of funds, or abuse of authority
• a substantial and specific danger to public health or public safety

Roles and Perspective

Whistleblower

The whistleblower should (Gunsalus, 2010; Keith-Spiegel, 2010):

• Keep good records
• Avoid the mistake of an inappropriate allegation, begin by asking questions and seeking perspective
• Appropriately report or respond to possible misconduct
• Not take responsibility for investigating the misconduct or mete out justice
• Maintain objectivity with a goal of identifying and correcting any possible misunderstandings

Accused

Even though he/she may feel threatened or offended by the accusation, the accused should:

• Properly document all necessary information
• Cooperate with any possible investigation
• Maintain objectivity with a goal of identifying and correcting any possible misunderstandings

Necessity and Obligation

• Because of secretive nature of many research environments, misconduct will only come to light if someone close to the project blows the whistle.
• This relative secrecy is driven by many different factors, for example:
  • sheer practicality
  • protection of credit or intellectual property rights
  • worries about the possible misuse of preliminary data

Consequences

• Both whistleblowers and those accused may suffer whether or not the allegations are ultimately sustained.
• As with good research, the integrity of an allegation of research misconduct is best served by keeping clear, defensible records of what happened and when.

Why be a Whistleblower?

There is a considerable range of opinions among scientists about how to respond to perceived misconduct -- and an even greater difference between scientists and administrators (Wenger et al., 1999). Yet, as a 1995 publication of the National Academy of Sciences advises:

In addition to this proposed obligation, other reasons to favor whistleblowing include:

• Personal sense of responsibility


• Protect against the risk of wasted resources


• Clarify something that may either not in fact be wrong or is easily remedied


• Decrease the risk that someone else will uncover the misconduct and questions will be asked about why you didn't say anything

Examples of Whistleblowing

Whistleblower	Incident	References (see Resources)
Roger Boisjoly	Actions within Morton Thiokol prior to the O-ring failure believed to be the cause of the Challenger disaster in 1986	Presidential Commission on the Space Shuttle Challenger Accident, 1986
Robert Sprague	Data fabrication by Stephen Breuning	Holden, 1987
Jeffrey Wigand	Knowledge of nicotine's addictive properties within the Brown and Williamson Tobacco Company	Gleick, 1996
Margot O'Toole	Alleged misconduct by Thereza Imanishi-Kari, ultimately rejected on final appeal	Kevles, 2000
Peter Mock and John German	Volkswagen software designed to mask true emissions	Kell, 2015

Consequences for Whistleblowers

Unfortunately, the evidence is compelling that whistleblowers, not just the accused, suffer adverse consequences . Based on self-reports (Research Triangle Institute, 1995):

• Over 60% of whistleblowers suffered at least one negative consequence, such as:
  • Being pressured to withdraw their allegation
  • Being ostracized by colleagues
  • Suffering a reduction in research support, or
  • Being threatened with a lawsuit.
• Approximately 10% noted significant negative consequences, such as being fired or losing support.
• However, fewer than 18% of those suffering the most severe impact on their careers reported that they would be unwilling to come forward with allegations again.

This potential for adverse consequences makes it problematic to place an obligation for whistleblowing on scientists in training, such as postdocs, graduate students, or undergraduate students.

How Should I Report Misconduct?

Because of the serious consequences of an allegation of misconduct, it is important to be clear about the allegation. This concern is particularly relevant for someone with relatively little experience in research or in a specific area of research.

To avoid the mistake of an inappropriate allegation:

• Begin by asking questions and seeking perspective. Depending on circumstances, it may be appropriate to talk to:
  • Peers
  • More senior members of the research group
  • Someone in an ombuds program, or
  • Even the individual whose conduct is in question.
• Clearly distinguish between facts and speculation in presenting an allegation and supporting documentation.
• Avoid the trap of inferring motives on the part of others.
• Instead, stick to the facts of the case, which will reduce the risk of a loss of credibility.

These considerations do not diminish the need for whistleblowing.

Scope of Regulations

To foster fair and timely responses to allegations of research misconduct, regulations typically include:

• safeguards for informants and for the subjects of allegations
• an expectation of objectivity and expertise
• adherence to reasonable time limits, and
• respect for confidentiality.

Whistleblowers are protected under rulings from both state and federal governments.

Legal Protections

Whistleblowers are entitled to a number of legal protections.

The first amendment to the Constitution, guarantees free speech, giving whistleblowers legal protection from retaliation.

The federal False Claims Act is more far-reaching (US Code, 1986):

• Originally developed to protect the federal government from fraudulent contractors during the Civil War, the Act provides that any individual with primary knowledge of fraudulent use of federal funds can bring charges.
• If a defendant in a False Claims case is found liable, then the whistleblower can be awarded 15-30% of the resulting settlement.
• The False Claims Act also specifically calls for significant remedies for any discriminatory action that can be shown to have been taken to retaliate against an employee who has presented a case under the Act.

Current federal policies to protect whistleblowers from retaliation are covered, in part, by:

• Whistleblower Protection Act of 1989
• Department of Health and Human Services (2000)
• Whistleblower Protection Enhancement Act of 2012, which led to the establishment of a Whistleblower Ombusdman to:

  educate agency employees about prohibitions on retaliation for whistleblowing, as well as employees' rights and remedies if subjected to retaliation for making a protected disclosure.

The regulations are intended to place obligations on institutions both to prevent and to remedy retaliation against whistleblowers.

In addition to federal regulations:

• Most states and/or institutions typically have specific protections for whistleblowers.
• Most institutions, and many professional societies and journals, offer guidelines to support the role of the whistleblower.

Guidelines can have as much or more importance than the regulations in reducing the chance of adverse outcomes.

Discussion Questions

1. List at least three reasons that the integrity of science is dependent in part on whistleblowing.


2. Describe the relative advantages and disadvantages for an individual who makes an allegation of research misconduct.


3. List at least three steps a potential whistleblower can take to decrease the likelihood of adverse consequences.


4. As a student, should I discard data that does not showcase the point I am trying to make?


5. As a professor, if my student’s results seems too good to be true, should I ask them to show me their raw data? What if the results are from a fellow professor?

Case Studies

1. Department of Health and Human Services (2000): Public Health Service Standards for the Protection of Research Misconduct Whistleblowers. Notice of proposed rulemaking. Federal Register November 28, 2000 65(229):70830-70841. http://ori.hhs.gov/misconduct/nprm_reg.shtml


2. Gleick E (1996): Tobacco blues; the tobacco industry has never lost a lawsuit; but a new billion-dollar legal assault, and a high-ranking defector, may change that. Time 147(11): 54 (5 pages). http://content.time.com/time/magazine/article/0,9171,984241,00.html


3. Gunsalus CK (2010): How to blow the whistle and have a career afterwards. https://nationalethicscenter.org/resources/149


4. Holden C (1987): NIMH Finds A Case of Serious Misconduct. Science 235:1566-1567. http://science.sciencemag.org/content/235/4796/1566


5. Keith-Spiegel P et al. (2010): Responding to research wrongdoing: A user-friendly guide.


6. Kell J (2015): Here's who figured out Volkswagen was cheating on emissions tests. Fortune Magazine. http://fortune.com/2015/09/21/volkswagen-emissions-testing-golf.


7. Kevles DJ (2000): The Baltimore Case: A Trial of Politics, Science, and Character. W.W. Norton & Company. Reviewed at: https://www.nytimes.com/books/98/09/20/reviews/980920.20portert.html


8. National Academy of Sciences, National Academy of Engineering, Institute of Medicine (1995): On Being a Scientist: Responsible Conduct in Research. National Academy Press. http://www.nap.edu/readingroom/books/obas


9. National Science Foundation: Whistleblower Protection https://www.nsf.gov/oig/whistleblower.jsp


10. Presidential Commission on the Space Shuttle Challenger Accident (1986): Report to the President. Government Printing Office, Washington, D.C. http://history.nasa.gov/rogersrep/genindex.htm


11. Research Triangle Institute (1995): Consequences of whistleblowing for the whistleblower in misconduct in science cases. Report submitted to Office of Research Integrity. http://ori.hhs.gov/sites/default/files/final.pdf


12. US Code (1986): False Claims Amendments Act of 1986. 31 USC Sections 3729-3731. https://www.justice.gov/jmd/false-claims-amendments-act-1986-pl-99-562


13. US Office of Special Counsel. https://osc.gov/Resources/post_wb.pdf


14. Whistleblower Protection Act of 1989. http://thomas.loc.gov/cgi-bin/query/z?c101:S.20.ENR:


15. Whistleblower Protection Enhancement Act of 2012. https://www.gpo.gov/fdsys/pkg/PLAW-112publ199/pdf/PLAW-112publ199.pdf