Friday, June 24, 2016

Protection from the State (Part 3)

Protection from the State (Part 3)
(Links to Part 1 and Part 2)

Recently the State has taken up the whistleblower complaint I filed a year and a half ago, and I have had three telephone conversations with Stacey (not her real name), the Deputy Labor Commissioner assigned to the investigation.  My initial complaint, my response to the HomeFirst rebuttal, and my additional supporting documents added to just over 200 pages of information.  She felt, though, that it would be best for me to describe the disclosures and retaliations extemporaneously, rather than ask me questions about the material I provided.

After confirming some basic information – hire date at HomeFirst, title, responsibilities, salary, termination date, and so on – Stacey asked me to describe, on the fly, each of the issues, beginning with the County overbilling.  When I said I had been concerned that the Program Officer, directed by the CEO, might not be accurate in her communications with EHAP concerning its loan, she asked why that was any of my business.  When I referred to HomeFirst’s violations, she corrected me: “alleged violations.” 

She minimized my concern about the California licensing issue because I was only a finance guy.  She challenged: how did I know that the CEO and Board did nothing about the licensing issue until after the State’s monitoring visit?  From a comment by the Vice Chair and from the CEO’s emails, I said.  She seemed unfamiliar with my access to the emails despite the evidence I had provided and my message to her on the topic of “unclean hands.”  Tell me you knew about the emails, I urged her, three times.  Finally she said, yes, she knew about them.  Maybe so, I thought.

Stacey had scheduled an hour for the first conversation, but after an hour and a half we still had many important things to discuss, she said.  At the start of our next conversation the following week, she proposed a different tack: I would cite the laws HomeFirst violated, the date of each disclosure with the name of the person informed and the method used in the disclosure, and the associated retaliatory action.  I would provide this information without preparation although I could send additional information later if I liked.

We began again with the alleged violations.  She thought the bid collusion was among HomeFirst, Downtown Streets, and the City of San Jose (the last being uninvolved), and she was interested whether bid collusion was actually proven (which is irrelevant to whistleblower complaints in California).  She needed a few attempts to get “food handler cards” down right in the notes she typed into her computer.  Eventually we worked through the eight HomeFirst issues I had disclosed.

She asked if there was anything else, and I volunteered the HUD liability issue.  I suspected that HUD may have informed HomeFirst about that complaint, which dealt directly with HUD’s failure to collect any of the $1.2 million had overbilled in 2003-2006.  Stacey played the devil’s advocate role: it appears, she said, that I was trying to bankrupt HomeFirst by complaining about the issue.  I was, she suggested, violating my “duty of loyalty” to HomeFirst by “undermining” the company.  What interest did I have in whether HUD ever collected the money, she asked.  When I offered that I was a taxpayer and a citizen, she was unmoved.  But I had not told HomeFirst about the complaint, so we could forget that one, she concluded.

In closing, she asked for a list of witnesses – not character witnesses but people who were aware of my responsibility to raise compliance issues to the attention of management and to report them externally if management failed to act.  How should I respond: whistleblowing is not a strict responsibility per HomeFirst policy or California regulation.  Anyway, everyone with that awareness was on the other side of my case.  I mentioned one current Board member with whom I had worked extensively for five years and who had once vouched for me.  Well, that could be a problem, Stacey explained, because HomeFirst might not let the director talk without an attorney present.

A few days later I sent her a list of the laws and regulations that I thought HomeFirst violated, the disclosure dates and methods, and the associated retaliations.  I also referred to the State website and court decisions that related “duty of loyalty” to an employee’s benefitting at the employer’s expense, but not to the employee being fired for reporting suspected corporate wrongdoing.  She seemed to have ignored my anti-unclean hands legal argument, and she might do the same with this “duty of loyalty” argument.

Stacey has a difficult job.  She has to handle 100 cases like mine, she told me.  She is an expert in 42 areas of labor law, she said, but cannot know all of the laws and regulations covered in the complaints that cross her desk.  She must make decisions based on what a plaintiff and defendant claim and the little research she has time for. 

The roughly $65,000 a year the State pays Deputy Labor Commissioners can restrict the candidate pool.  Stacey passed the California Bar in 2002, worked for a few years in small law offices and then got off that track.   From 2012 through 2015 she earned $15,000 a year as a part-time athletic director in the city where she lives, coached runners, and did some law work on the side.  During the past year she began handling complaint cases from people like me who have more time than expertise in legal matters.  Imagine 100 plaintiffs each dumping 200 pages of words on her desk to make sense of.  It must be a relief when company attorneys give you the information you need in an easy-to-read format. 

The process could understandably prime an investigator to favor a defendant, like HomeFirst, who presents its argument succinctly: we fired the guy because he was an incompetent jerk, his complaint is nonsense, and we never did anything wrong.  Six pages is all it takes.  If I were in Stacey’s chair facing 100 messy cases, I can imagine wanting to move on.  But maybe I read into her questions and comments a leaning that was not there.  She will get back to me although it will take at least a month.


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