Extending protection to Zelekha an iffy proposition.
By ASHER MEIRYARON Zelekha 88 224(photo credit: Ariel Jerozolimski)
Accountant General Yaron Zelekha's four-year contract is expiring, and Finance Minister Ronnie Bar-On has decided not to extend it. Sounds uneventful - most other Accountant Generals have served only one term, and Zelekha has been forceful in his criticism of the government of which Bar-On is a member. However, there is a dramatic twist: Zelekha is claiming that his job is protected by "whistle-blower" legislation, which forbids firing or disciplining an employee because he or she reports employer wrongdoing to appropriate authorities.
Zelekha, it will be recalled, brought evidence to State Comptroller Micha Lindenstrauss that Prime Minister Ehud Olmert, when he was Minister of Finance, intervened in the tender for the sale of Bank Leumi to try and improve the chances of investors who are known supporters of Olmert. This is the most complex application of whistle-blower protection I have encountered.
Whistle-blower protection statutes have become very common in democratic countries in recent years. The rationale for protecting whistle-blowers is clear: These individuals have brought to public attention scandals that involved immense costs and dangers to the public and the fear of such revelations has no doubt deterred uncounted additional cases of wrongdoing. Protection is needed because experience shows that in almost all cases where no protection is granted (and quite often even when it is) whistle-blowers lose their jobs and in many cases their careers.
So one justification for whistle-blower protection is to protect the obvious public interest in knowing when companies are defrauding the government or endangering the public. An additional justification is that many researchers believe that most whistle-blowers ultimately benefit even their own organizations, and that the internal vendettas against them are based on the personal hostility of superiors who were themselves implicated in cover-ups and not on the objective interest of the company itself. If Enron had heeded the warnings of internal whistle-blowers such as Sherron Watkins, there is a good chance the company would have been saved. This is definitely true in the case of a public servant like Zelekha, where there is no valid distinction between the interest of the public and that of the employer.
But this vital protection is not without its problems. It's impossible to call someone a whistle-blower just because he claims that a company is engaging in wrongdoing. Every person could protect his job by just making up a story of corporate crime. The solution to this problem is to limit protection to cases where wrongdoing is proven or where the employee has a firm basis to suspect it.
This is the first weak link in the Zelekha case. Olmert has not been convicted or even indicted in the Leumi case; an investigation is still underway. Proving that Zelekha had a firm basis to believe that Olmert engaged in wrongdoing faces immense hurdles, beginning with the question of whether the intervention took place at all and ending with what exactly its legal status is given that Olmert is not accused of having accepted a bribe.
Even if Zelekha is granted whistle-blower status, he has to show that his disclosure is what led to his dismissal. This will not be so easy.
In fact, it will not be easy even to prove that he is being dismissed - the job has a four-year tenure that is now up and the majority of past Accountant Generals served no more than one term. And given the unique nature of the post, it will be hard to find precedents that would prove that there are no other grounds for dismissal. In fact, Bar-On could reasonably claim that it is perfectly legitimate for Zelekha to report on suspected wrongdoing to the Comptroller, but that whistle-blower legislation is not meant to protect only reporting to authorities, and not the vocal public criticism that Zelekha has voiced.
It is also an open question whether the protection extends to jobs that are not career positions. Certainly, no one believes that Zelekha's stellar career, or even his public service career, will come to an end if his tenure is not renewed by Bar-On.
All these are perplexing gray areas; there are good arguments on both sides. An additional consideration is that firing an ordinary whistle-blower is regrettable but understandable because the person is harming his employer in violation of the work agreement, but Zelekha is basically claiming that he is being fired for doing his job, not for neglecting it. After all, the job of the Accountant General includes identifying waste and fraud in the public sector.
Each of these question marks is worthy of consideration, and it wouldn't be fair to deem Zelekha's bid for protection frivolous. But, ultimately, I think that there are just too many question marks to validate the application of this very important legislation to the Zelekha case.
The truth is that whistle blowers at the highest levels, like Zelekha, obtain adequate protection in the court of public opinion. I think that Zelekha is well aware of this. A reputation as a resolute foe of public-sector corruption is an invaluable asset in public life and for politicians in particular. For these individuals, whistle-blowing is more likely to launch your career than to end it. I think we have very little chance of seeing Yaron Zelekha continue as Accountant General, and a very large chance of seeing him in an even more prominent public position in the future.
ethics-at-work@besr.org
The author is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of technology.
