2nd Issue:
State of California Licensing Requirement (Part 2)
In October 2013, I wrote confidentially to the Chair of the
Audit Committee that comments by CEO Jenny and the Board Chair violated the
company’s whistleblower policy and that the company was not moving fast enough
on the licensing issue. He and the Board
Chair replied that the Board was acting appropriately to resolve the licensing
question.
In November, the Executive Committee of the Board decided that
Jenny and three Board members would seek an informal consult with an attorney
on the issue. Cutting me out of the
process and making the meeting informal seemed to me tactics to delay action
further. I mailed my complaint letter to
CCL that night. My first external
whistleblowing increased the stakes by disclosing information to a potentially
powerful third party about whom I knew little.
The complaint might be disregarded, or CCL might bang on the BRC doors
the next day.
Two months passed without a response. The CCL website said not to bother following
up on complaints. Then the letter was
returned, rejected by addressee for insufficient postage. I mailed it again, this time with more
postage. Two weeks passed, and I called
to confirm receipt. The guy who answered
found no record of the letter, and I emailed it to him, nearly six months after
I first raised the issue.
Still, the Board had done little to obtain its informal
consult. The Vice-Chair of the Board,
who decided that my list of attorneys was not adequate and agreed to locate a
suitable attorney, had made no progress in her search. During the week following CCL’s visit to BRC
in February, Jenny finally arranged pro bono legal assistance from a large San
Francisco law firm.
When I blew the whistle to CCL, I presumed to benefit the
public interest[1]. Here, the public members to be protected
were the clients who resided at the site.
By some ethical standards, I needed to be confident of the accuracy of my
claim, but that is not always easily done.
The licensing requirement was determined by “care and supervision,”
which called for expert understanding that I and the Program Officer may have lacked.
As an
employee and company officer, I
had legal and ethical obligations to my colleagues. I could minimize my breach of company loyalty
by first exploring internal avenues for change.
But figuring whether anyone’s use of internal channels is adequate can
be difficult because the company’s response to a whistleblower might be
disingenuous. The fact that six months after
I raised the issue no attorney had been identified for the consultation seemed
to confirm the Board’s tepid commitment to resolving the question, but perhaps
other issues legitimately competed for attention. Perhaps I should have objected internally about
the delay, too, but the prospect of endless rounds of internal study and
response made external disclosure seem to me right despite the potential
consequences.
Those obligations and loyalty to
company and co-workers may be trumped by higher loyalties, such as to
professional standards[2]. And the whole company loyalty thing may be
rejected on its face[3]. Loyalty may be just attractive management
technique[4] in
an age of at-will employment.
Another ethical test for my
whistleblowing might be whether harm to the public from the wrong is serious
and exceeds the company’s injury from the disclosure[5]. By this standard, few acts, and certainly not
this potential licensing violation, deserve being called out by a
whistleblower. Key to this test,
however, is an assumption that the whistleblowing would harm the employer to
whom he should be loyal. Jenny claimed
that my whistleblowing would cause terrible damage, but that was unproven at
the time and was eventually disproven.
To overcome possible biases, the
whistleblower might owe everyone involved exposure of the facts to an objective
party prior to disclosure. But obtaining
an objective opinion prior to disclosure can be difficult and expensive to
obtain. Prior to mailing my complaint, I
described the circumstances to three out-of-the-area attorneys. None of them replied. In the end, I was left to make the decision
on my own.
The day after the CCL visit,
Jenny called me on a speaker phone – she never called me on a speaker phone – and
asked whether I had anything to say about the visit. Nope.
At the next Board meeting, she discussed the visit and said that whoever
contacted CCL – a quick, sharp look at me – did not understand what he was
doing. At the end of March I admitted to
having contacted CCL. Jenny forwarded my
email to the Board Chair, who replied, “no surprise.” My complaint was anonymous, but they knew.
After their monitoring visit,
the CCL staff determined that the BRC had provided “care and supervision” in
violation of regulations. They decided,
however, that HomeFirst’s vital services to the community satisfied CCL’s
“urgent need” definition. As a result,
BRC could stay in operation on a temporary basis while we proposed program
changes to avoid future violation of the regulations. Meanwhile, the CCL staff in San Jose
discussed the matter with their superiors and political staff in Sacramento
because of the decision’s potential statewide impact. In June 2014, CCL advised HomeFirst that the
complaint was “unfounded” following its program changes. Everything was fine, except that by then I
had lost my job.
The BRC licensing violation offers
some additional lessons to the whistleblower:
11.
It can be difficult
to determine whether an act is truly illegal or unethical and worthy of
disclosure.
22.
Distinguishing legitimate
justifications from illegitimate rationalizations for allegedly wrongful actions
can be difficult.
33.
No less difficult is
it to decide when inaction, caused by lengthy study, slides over into evasion
of corrective action.
44.
The whistleblower must
wrestle with questions concerning to whom and under what circumstances he or
she will be loyal.
55.
Political
perceptions of the significance of the violation and the consequences of
disciplining a misbehaver may ultimately overwhelm the question whether an act
is wrong.
[1] Bok, Sisella. “Whistleblowing and Professional Responsibility.” New York University Education Quarterly 11.4 (1980):
2-10
[2] Vandekerkhove, Wim
and M.S. Ronald Commers. Whistleblowing and Organizational Social Responsibility.
Aldershot, Hampshire, England: Ashgate Publishing Company. 2006
[3] Duska, Ronald. “Whistleblowing and Employee
Loyalty.” In Contemporary Issues in Business Ethics. DesJardins, Joseph R. and John J. McCall (eds.) Belmont,
California: Wadsworth Publishing Company. 1985
[5] De George, Richard T. Business Ethics. 7th edition. Upper Saddle River, NJ: Pearson
Education. 2009
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