Wednesday, March 23, 2016

Failed Whistleblowing – Correcting the Problems

Failed Whistleblowing – Correcting the Problems

My whistleblowing was a failure: it led to my being fired, and after almost three years my complaints were ignored, dismissed, or rejected.

By HomeFirst’s account, this was as it should have been.  I, not HomeFirst, was the problem: I failed to do my job; and I was a destructive personality from which the company had to protect itself.  That authorities did not act proved my complaints were frivolous and HomeFirst acted appropriately.

In my telling, the story begins with a nonprofit’s failure to be internally and externally accountable.  Government agencies joined in dangerous collaboration with the nonprofit and failed to monitor its activities adequately.  Corporate controls that appeared expansive on the surface were no match for countervailing internal forces.  The whistleblower was not protected, and the problems he identified were left unaddressed.  The legal system played out in favor of the greater economic and political power of the corporate perpetrator.  I was defeated, and my adversaries were unmoved. 

A whistleblower’s project is smothered in the inactivity of the accused wrongdoer and its allies.  HomeFirst’s foot-dragging on the way to correcting its violations may elicit sympathy in some.  To act promptly to remedy the overbillings, the licensing violation, the payroll problems, and the rest would risk an adverse result that was better forestalled.  Its inaction bled into its attorney’s incomplete replies and her indifference to requests for information from the City of San Jose and the State.   The apathy of government investigators validated HomeFirst’s inaction.

In my view, the problems are immense, the systems have great inertial weight, and quick solutions are unlikely.  I propose that a number of problems facing the whistleblower can be solved though the dissemination and discussion of information, but the challenges are many.

1.       Problem: An indifference to nonprofit accountability encourages belief that the company does good and the whistleblower is suspect.

Solution: As a first step, those with the money should stand up and say, enough.  Donors, board members, employees, volunteers, and government agencies should withhold their resources until adequate reporting of activities, results, and finances is forthcoming.  To nudge donors in that direction, the tax-deductibility of charitable contributions should be eliminated.

Standards for nonprofit accountability are elusive, and control and reporting systems are costly to implement.  But failure to demand accountability exposes funders, employees, and other stakeholders to fraud.

2.       Problem: After the whistle has been blown, politics and personal relationships between the accused and the arbitrator too often determine whether a violation has been committed, leaving the public out of the decision process.

Solution: The alleged perpetrators, accusers (with limited exceptions such as sexual abuse or discrimination), adjudicators, and the alleged violations should all be subjected to public disclosure and discussion.  Arguments defending the privacy of substantially government-funded companies are without merit.

3.       Problem: Corporate governance is biased in favor of the CEO and against critical parties

Solution: Boards, donors and other stakeholders should demand that internal corporate communications and decision-making be open to alternative voices.  Board minutes (with few exceptions) should be made public although that will be no panacea if minute taking conceals the actual decision-making process.

4.       Problem: A corporate sense of entitlement to the dedication and loyalty of its employees creates an environment that discourages critical thinking as well as whistleblowing.

Solution: Public discussion should acknowledge that while loyalty may have value for employees and employer, it is too often an ideal that is self-serving in the short-term and counter-productive in the long-term.  Management should accept that freedom is not a problem to be solved[1].  Public acknowledgment of the sometimes conflicting interests of the corporation and its employees should open the door to finding value in contrariness.

5.       Problem: Ineffective government oversight of nonprofit operations and finances, even when government provides a dominant proportion of revenues and assets, encourages noncompliance with the public’s reasonable expectations.

Solution: Public institutions should invest in monitoring compliance and the uses of their funds and in public reporting of the results of that oversight.  While legitimate concern for the confidentiality of the personal information may inform reporting, forthright discussion of failures to perform should be part of the public debate over the use of public funds and compliance with regulations.

6.       Problem: The close bond between government and nonprofits – at institutional and personal levels – suppresses effective investigation of wrongdoings. 

Solution: The government-private dynamic should shift from “partnership” to “contract-based” by acknowledging that government agencies and their nonprofit contractors have conflicting objectives, and mutual trust is not warranted unless amply supported by objective evidence. 

7.       Problem: Despite their claims to the contrary, neither companies nor government arbitrators provide effective protection for whistleblowers.  Even anonymous whistleblower hotlines can fail to protect during the investigation of complaints.  The legal playing field is slanted to favor the company, which has far greater resources to apply in its defense, over the lone whistleblower.

Solution:  Government and charitable funding should provide additional pro bono legal and technical supports for individuals who have filed or are considering filing whistleblower claims.  Fears that such supports would result in frivolous complaints pale in comparison with legitimate complaints that wither without support.

8.       Problem: Lack of accountability in the reporting of whistleblower activity unfairly protects the accused and their government partners, and it depresses future whistleblower activity.

Solution: Local, state and federal governmental agencies should publicly disclose whistleblower complaints, including names of the accused and the nature of complaints received, actions taken, and the backlog of complaints.  Agencies should be staffed adequately so that complaints are resolved in a timely fashion.

9.       Problem: Nondisclosure provisions of employment and settlement agreements isolate whistleblowers from each other and the general society, dampening the positive potential of whistleblowing.

Solution: In addition to public disclosure of whistleblower complaints, the results of civil actions on retaliation complaints should be publicly disclosed.  Disclosure of whistleblower complaints and their resolutions should be protected from the requirements of employment and settlement related non-disclosure agreements[2].  The formation of groups in which whistleblowers can safely share information about their cases should be fostered.

10.   Problem: Guided by unreasoned assumptions, authorities protect nonprofits that that abuse their legal status.

Solution: We should all acknowledge that the right of nonprofits to exist is dependent on their public benefit and that the liquidation of a nonprofit, through the transfer of assets and contracts to a more worthy entity, need not have dire public cost.

These proposals ignore some commonly prescribed techniques[3] that have proven ineffective over the 40 year history of business ethics.  Improved control systems and incentives within corporations and government entities too often are obstacles to be gamed, or they impose costs that are outweighed by the benefits of wrongdoing.  Moral training for managers relies ultimately on an unrealistic belief that ambiguities can be clarified to reveal right action.  Our boundless capacity for self-deception inevitably defeats our hope that awareness of our psychological weaknesses will steer us from error[4].

Solutions to the whistleblower’s dilemma will be disruptive and will be challenged by opponents as unnecessary.  But without meaningful changes, whistleblowers will continue to suffer retaliation without justice, and wrongdoing will prevail.




[1] Koestenbaum, Peter and Peter Block. Freedom and Accountability at Work: Applying Philosophical Insight to the Real World. San Francisco: Jossey-Bass/Pfeiffer. 2001
[2] Garfield, Alan E. “Promises of Silence: Contract Law and Freedom of Speech.”  Cornell Law Review 83 (1998): 261-364
[3] De Cremer, David and Henri-Claude de Bettignies.  “Pragmatic Business Ethics.” Business Strategy Review 2 (June 2013): 64-67
[4] Lawton, Graham.  “Interview with Robert Trivers.”  New Scientist. 212.2833 (October 8, 2011): 32-33

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