Protection from the State (Part 3)
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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