Whistleblower’s Opponents: Uncertainty

Whistleblower’s Opponents:      Uncertainty

The whistleblower is challenged, and may eventually be destroyed, by the uncertainty of her situation.

The wrong that she discloses is seldom beyond dispute.  Laws and regulations are subject to interpretation.  Wrongful intent is difficult to prove.  Organizations are rarely without some redeeming quality that merits defense.

In nearly every case, the whistleblower necessarily takes time to examine the facts.  Did a billing really exceed the amount permitted by contract, and what was the excess?  Were services subject to licensure, and how material were those services?  Did parties discuss an agreement whether to bid on a contract, and what were their motivations?  Wrongs on the scale of Enron’s fraud or the NSA’s surveillance program can take months to decipher, but even small wrongs like those I suspected at HomeFirst require investigation because these sorts of crimes are often technical and intent is disguised.

For small-time whistleblowers, the alleged wrongs are seldom startling in their magnitude.  The lives of hundreds of people are not at stake; the stakes do not reach many millions of dollars.  The organization and the whistleblower may both hesitate, wondering whether an incident merits special attention.

A second stage of uncertainty comes with the organization’s response to the internal disclosure.  The manager wants, perhaps quite reasonably, to study the matter, but then little seems to happen.  The whistleblower cannot be sure whether the delay is reasonable; no clear standard describes how hard she should push or when the delay becomes unreasonably long.

At this point, the organization may begin its retaliations against the whistleblower.  But early actions can be ambiguous: a sharpness in the manager’s tone, a suggestion that might be a warning to let the matter drop, exclusion from a meeting to which she would have been invited in the past, the shift of responsibility to a colleague.  The early actions are so slight that she might not be entirely sure what they mean.  Without supporters, she feels the discomfort of this uncertainty all the more acutely.

Following organizational inaction to correct the wrong and retaliation toward her, the whistleblower may report the suspected wrong to an external authority, but the glacial pace of governmental complaint handling is likely to exacerbate her trepidation.  Even more than within the organization, the whistleblower is an unknown character for an enforcement agency.  The story has two sides to be considered.

The whistleblower and the organization evaluate the alleged wrong in the context of established rules.  The enforcement agency must consider, in addition, the truthfulness of the facts proposed by the whistleblower, the motivations of the whistleblower in presenting them, and the possible consequences of enforcing or failing to enforce a rule that has been violated.  Its skepticism of the whistleblower has both legal and political motives.

The results of investigations by enforcement agencies suggest a bias in favor of the corporate accused.  When the accused is a nonprofit, the agencies may also yield to the accused’s presumed operation for the public benefit.  The City of San Jose, Santa Clara County, and HUD tolerated HomeFirst’s retention of ill-gotten funds.  HUD staff were happy to accommodate HomeFirst’s violation of its master leasing requirement.  The respect that the State of California and Santa Clara County had for HomeFirst’s good work encouraged them to accept the company’s promises of future corrective actions.

If the whistleblower is troubled by doubts and the enforcement agency seeks alternative interpretations of her story, there is no hesitation in the accused.  HomeFirst’s reaction to my whistleblowing was prompt and calculated.  Its account of the situation, HomeFirst was unrelenting in its criticism of my actions, character, and motivations.  As the whistleblower’s project continues over months and years, she may become exhausted; she may lose hope and either abandon the fight or settle for what little the organization will offer.