Thus far, this chapter has portrayed public employment law as a somewhat monolithic embodiment of a conception of public employment. It is true that public employment law stresses a narrow view of employee loyalty, efficiency supported by unity of command and restrictions on the rights of expression of public employees. Public employment law also rejects a significant role for public employees in democratic accountability. The conception of public employment, however, draws on a more complex set of theories than thus far presented. Within the confines of this chapter, the examination of these theories is necessarily cursory and intended only to identify strains of thought embedded in conceptions of public employment to which whistleblower protection relates.

An examination of some of these strains of thought show their relationship to whistleblower protection. For purposes of illustration alone, these strains of thought together can be conceived as a vision of public service. This vision has different views than the dominant view of public employment law of employee loyalty, efficiency, freedom of expression of public employees, participation by them in agency administration, and public employees’ role in democratic accountability. This vision also assumes that employees are motivated by a morality of role that stresses the obligations to the public of those who exercise public power.

The strains of thought from which this vision of public service can be perceived reflect theories from different historical periods. The theories themselves are not always consistent with one another because they rest upon different views of the ideal character of administration.^[109] For our purposes, however, it is sufficient to suggest how they form a reservoir of ideas and arguments which coincide nicely with the ideas and arguments regarding whistleblower protection. This coincidence of ideas and arguments allows whistleblower protection to draw on existing conceptions of public employment, conceptions which magnify the challenge of whistleblower protection to public employment law.

The admonition that a public office is a public trust describes public employment in terms of fiduciary duty, that is, the obligation of one person to act on behalf of another.^[110] Conflict of interest provisions, in the United States, certainly support a duty to act on behalf of persons other than the management of an agency and, perhaps beyond a duty to act on behalf of the agency, to act on behalf of the government of which individual agencies are a part.^[111] It is through this fiduciary duty that government employees act on behalf of the public.

This conception of loyalty reminds one of the Code of Ethics for Government Service discussed above. Like that code and the ethical standards contained within it, this conception of employee loyalty is a broad one. Unlike those ethical standards on which whistleblowers relied, this conception of employee loyalty has legal effect and status as an important principle of public employment law.

A concept of efficiency relying upon unity of command rests in part upon the need to legitimise administration. Administrators are generally unelected and exercise considerable discretion only loosely controlled by legislative enactments. Unity of command links the democratic accountability of the executive and of the legislature to public employees more generally and offers a narrative which subjects public bureaucracies to legal control.^[112] The heads of administrative and executive agencies are chosen by the President and confirmed by Congress. These persons are responsible to these democratically accountable bodies. In turn, they have the power to control their agencies and the personnel authority to ensure compliance by the agency’s employees. This support for unity of command was melded with views of administration which emphasised machine-like efficiency with each employee functioning almost as a small cog in a larger machine.^[113]

The ‘New Deal’ concept of administration rejected this machine analogy and adopted a model relying on the expertise of public employees.^[114] This emphasis on expertise provided not only a different view of efficiency — each employee now exercised considerable individual discretion and initiative within administration — but also a method of control of the bureaucracy — expertise and professional standards restrained the discretion of bureaucrats.

Beginning in the 1960s and 70s, public administration scholars also attacked the concept of efficiency arguing that centralisation and the control of information that it posited, reduced, rather than furthered, administrative efficiency.^[115] Moreover, efficiency could not be isolated from the obligation of public employees to follow democratic and constitutional norms.^[116] In a democratic society, these norms are inescapably incorporated into the role of the public employee. In becoming a public employee, one assumed an obligation to these norms.

With the demise of the view that public employment was a privilege, the grant of which could be conditioned on the surrender of an employee’s constitutional rights, the courts began to apply constitutional protections, including freedom of expression, to public employees.^[117] The key Supreme Court decision in the United States regarding the free speech rights of public employees linked that right to the public’s access to information and to democratic accountability.^[118]

As scholars conceived of administration as politics, employee participation in administration became a restraint on a political process which often operated to benefit special interests at the expense of the public interest.^[119] An influential book on public administration argued that public bureaucracies should reflect the composition of the constituencies that they served.^[120] These views of administration rejected a passive role for public employees and defined their role to include advocacy within administration for the public interest.

Because public employee ethics can be conceived of as a type of role morality where the assumption of a position carries with it the obligation to support certain values and to adopt particular perceptions of appropriate behavior, these strains of thought could be incorporated into this role for public employees. The above examination of those strains of thought indicates why they fit well into a view of role morality. The appropriate role for a public employee is, of course, continually at issue, but the concept of role morality tends to buttress a view that public employees internalise and apply the most basic values of public service not from fear but from an acceptance of their role.

If the reservoir of ideas and arguments suggested by these strains of thought can be characterised as ‘a vision of public service’, that vision shares much with the challenge posed to public employment law by whistleblower protection. They both take a broad view of employee loyalty, reject unity of command, support employee freedom of expression, encourage participation in agency decision-making and recognise a central role for public employees in preservation of the rule of law and in democratic accountability. Therefore, as powerful as is the challenge posed by whistleblower protection, the connection of that challenge with this vision of public service magnifies its effect.

The differences, or lack of them, between the protection of public and private sector whistleblowers probes the commonly drawn distinction between public and private employment law. Doubts about the validity of the distinction are part of a much more lengthy, and more generally articulated, critique of the distinction between what is public and what is private. These doubts also draw on the observation that the regulation of public and private employment increasingly rests upon statutes. These statutes do not vary significantly from public to private employment. In this context, the brief discussion here only plays some larger, well developed themes; it is a discussion that illustrates more than it expounds these themes.

For the purposes of this chapter, however, a discussion of whistleblower protection in public and private employment offers insights into the general thesis of this chapter — that whistleblower protection relies upon principles and precepts that challenge important concepts in public employment law. The application of those principles and precepts to private employment law ironically provides the last challenge to public employment law.

In the United States, although states address whistleblowers in the public and private sector in the same statutory provisions, many states address them separately. The statutes of jurisdictions which address separately the protection of whistleblowers in the public and private sectors approach the protections differently. These differences, however, are more likely to respond to practical differences in existing procedures in public and private employment law than to significant differences in the rationale for protection. Because the public employment system is more likely to have generated a broadly applicable uniform personnel and grievance system, public sector statutes show a greater preference for administrative procedures than do the private sector ones which are more likely to prefer judicial or other remedies.^[121] The preference for administrative redress also leads to a greater reliance on administrative remedies in public than private sector statutes. For example, it may be much easier administratively to discipline supervisors in a unified public employment disciplinary system than to do so in the more disjointed private sector.^[122] In private sector statutes, discipline is more likely to be through private suit or criminal prosecution.

Public sector whistleblower statutes rest upon the importance of access to government information. Although this rationale does not apply in the private sector, the differences in protected disclosures are not great.^[123] Private sector statutes may be less likely to show the same concern with waste of funds or abuse of authority but other grounds for disclosure are quite similar. Private sector statutes are more likely to require internal disclosure than public sector ones and perhaps this difference reflects a desire to limit government interference in the private sector.^[124]

One could expect that the differences between public and private sector employment would create more dramatic differences between public and private sector whistleblower statutes. There simply does not appear to be substantial and dramatic differences in the ways in which these statutes conceive protection of public and private sector whistleblowers. The striking similarity in approach is also exhibited by the number of jurisdictions which protect public and private sector whistleblowers under the same statute.

The similarity of approach suggests that the principles of whistleblower protection which invest public employees with the obligation of preserving the public interest are also applied to private employment. Indeed, the first protections of private sector whistleblowers in the United States rested not on statute but on judicial decisions which created a public policy exception to the doctrine of at-will employment, a doctrine which otherwise permitted an employer to dismiss an employee for any reason.^[125] The application of the principles of whistleblower protection to private employment produces some startling propositions, at least for lawyers in systems which apply different constitutional and legal protections to private employment. Like public employees, private employees have a loyalty to the rule of law in a democratic society beyond any loyalty to their employers. They have an obligation to protect public health and safety. In addition, anti-corruption provisions rest upon equally startling propositions; for, they rely upon private employees to disclose corruption of public officials. These disclosures not only vindicate the rule of law but also provide access to information about the performance of government necessary to democratic accountability. In another sense, whistleblower statutes protect certain speech against regulation not by the government but by private employers.

The Australian statutes appear to draw clearer distinctions between whistleblowers who are public employees and those who are private employees. This clarity, however, does not weaken the conclusions regarding the similarities of public and private employment, previously drawn based on state laws in the United States.

Commonwealth legislation provides an example of the distinction between public and private employment. The Public Service Act 1999 (Cth) provides that agency officials must not either victimise, or discriminate against, Australian Public Service employees who report breaches of the public service code of conduct.^[126] The Workplace Relations Act 1996 (Cth) prohibits employers covered by that legislation, generally corporate employers but also the Commonwealth as employer, from terminating a whistleblower’s employment because of ‘the filing of a complaint, or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities’.^[127] These Commonwealth statutes can be characterised as ones that protect disclosures of the breaches of differing norms applicable to the employment relationships in the public and private sectors.

The laws of the Australian states, discussed previously, also vary in the coverage of employees in the public and private sectors. Some protect disclosures of official misconduct by any person in either the public or private sector.^[128] Others protect disclosures only by public employees.^[129] Those Australian statutes protecting disclosures by both public and private employees reflect a recognition of the overlap between the public and private sectors and of the difficulty of distinguishing between them.^[130]

However, the distinctions that these laws draw between employees in the public and private sectors do not alter the challenge that whistleblower protection poses to the concept of a public as opposed to a private employment law. These laws address the same problem of official corruption. Arguably the statutes applying only to public employees are striking not because they reflect a difference between public and private employment but rather, unlike may anti-corruption laws, they connect disclosures to employment. Therefore, these laws confirm rather than weaken the conclusions based upon an examination of state whistleblower laws in the United States.

These propositions and principles impute to private employment many of the values associated throughout this chapter with public employment. In a practical sense, the insights provided by whistleblower protection provisions suggest a useful way to examine the issue of the privatisation of public functions. These insights should ease the task of regulating private employees in this context by using principles and concepts from public employment law.

An examination of how the principles and precepts of whistleblower protection challenge public employment law also exposes the similarities between public and private employment law. In discounting the distinctions between the two, whistleblower protection ironically poses perhaps its greatest challenge, a challenge to the very notion of a distinct public employment law.