In my last post, I discussed and critiqued a proposal, advanced in a policy paper published by the Israel Democracy Institute (IDI), for a mandatory reporting requirement in Israel’s public sector. Under the IDI paper’s proposal, a public official who, acting in his or her official capacity, formed a “substantial suspicion” that corruption has taken place or will take place could face disciplinary sanctions for failing to report this suspected corruption “as soon as possible.” I criticized this proposal on the grounds that it would both discourage reporting in those cases where a potential whistleblower is reluctant to report right away and so delays for a period of time, and would also deter employees from cooperating with investigators by sharing relevant information that they had not previously disclosed. In both of these cases—the employee who didn’t report right away but might be willing to report later, and the employee who didn’t voluntarily report but might be willing to share information when questioned by investigators—the threat of disciplinary sanctions for failure to report immediately may actually induce employees to keep silent, especially since the chances they will be caught and punished if they never reveal what they suspected are generally quite low. Instead of imposing a mandatory reporting requirement, I argued, Israel (and similarly situated countries) should strengthen positive incentives for whistleblowers, offering them more generous rewards and more effective protections against retaliation.
While many readers broadly agreed with my critique of the IDI paper’s mandatory reporting proposal in its current form, several colleagues suggested that a modified version of the mandatory reporting requirement might be effective and appropriate. In this post, I consider what seem to me the most plausible and promising revisions to the original IDI proposal, and evaluate whether these modifications would overcome my principal critiques:
- Adopting a predetermined grace period: First, instead of requiring employees who suspect corruption to report “as soon as possible,” a mandatory reporting requirement could give employees a longer period of time in which to report. For example, the law could require public officials to report on corruption within eight months after having formed a substantial suspicion that an act of corruption has taken place or will take place. This revision would ameliorate the concern that the mandatory reporting requirement could discourage potential whistleblowers who failed to report right away from ever reporting. At the same time, though, specifying a fixed period within which the reporting should occur may encourage potential whistleblowers, who might otherwise have reported earlier, to “take their time” and use up the entire grace period before reporting. In addition, in most cases it is not possible to prove when a public official formed a substantial suspicion of corruption, which may often render the reporting requirement nearly meaningless. Most importantly, the length of a predetermined grace period, whether it is one week or one year, would be arbitrary, and public officials who did not report within this period would still be discouraged from reporting or cooperating later on.
- Adopting a “reasonable time” standard: Instead of adopting a rigid, predetermined grace period, a mandatory reporting requirement could obligate employees to report on corruption suspicions within a “reasonable time, depending on the circumstances.” Under such a case-by-case standard, a whistleblower who reported on corruption in her workplace long after learning about it could, for example, avoid disciplinary sanctions if she could show that she had a justified concern for her safety that dissuaded her from reporting earlier, whereas another employee who did not face any such concerns might face sanctions for not reporting more promptly. This approach would make tailored determinations as to how much delay is reasonable, rather than establishing an arbitrary and fixed grace period. But this approach suffers from many of the familiar disadvantages associated with flexible standards, which are difficult to apply in a consistent and predictable manner. The uncertainty of what a future disciplinary tribunal might consider a “reasonable time” may confuse and discourage potential whistleblowers, who might prefer to err on the side of caution and avoid reporting or cooperating with an investigation if the potential whistleblower believes that there is a chance, even a relatively small chance, that a tribunal may find their time of reporting “unreasonable.”
- Granting immunity to “voluntary” whistleblowers: Another alternative is to modify the IDI proposal so that any whistleblower who steps forward voluntarily would be granted immunity from disciplinary proceedings for failing to report on time. Instead, disciplinary actions would be taken only against those officials whose failure to promptly report was discovered by the authorities before the officials voluntarily stepped forward. Such a rule would encourage public officials to report on acts of corruption (lest they eventually be caught for not reporting), but without creating the fear that delayed reporting would expose them to disciplinary sanctions. However, this immunity can easily be abused. For example, public employees who do not want to report on corruption might step forward only when they fear that their failure to report is very close to being discovered. Additionally, this rule would not eliminate the disincentive employees would face to respond honestly when questioned by investigators as part of an active corruption investigation.
In short, it is not clear whether the IDI paper’s proposal can be modified such that the benefits of a mandatory reporting requirement will outweigh its potential costs. Still, this is worth further exploration and debate, as I acknowledge there are upsides to imposing corruption reporting obligations on public employees, which may not be fully achievable with positive incentives alone. For example, as the authors of the IDI paper argue, the existence of a mandatory reporting requirement might reduce the public stigma that sometimes attaches to whistleblowers, therefore encouraging more public employees to expose corruption. But as I have tried to show in this post and the preceding post, the effects of mandatory reporting requirements are complex, and careful attention must be paid to the details of the design of such rules. Different models entail different benefits and risks, which are not always immediately apparent.