Whistleblower Opponents: Proof
(Part 1)
Whistleblowers deal with two levels of proof: one relating
to the wrongdoing that we allege and the other to the retaliation we experience
after we disclose wrong. We seldom doubt
the quality of the proof that we provide, but the alleged wrongdoers will challenge
us and the justice system may be biased against us[1].
The wrongs that I claimed HomeFirst committed were varied
and provide examples of proofs that many whistleblowers use attempting to prove their cases:
Proof was confirmed in some instances:
1.
The
County Overbilling – HomeFirst’s invoices were based on a per-day rate, but
audits of expenses, first by internal staff (me) and then by Santa Clara County
staff, found that the billings exceeded actual costs in violation of the
contract. Proof of the overbilling was
undisputed by the parties. HomeFirst
claimed that the overbilling was not intentional but did not repay the amount.
2.
State
of California Licensing Requirement – My written descriptions of
HomeFirst’s services and clients at the location made me confident that proof
of wrongdoing was adequate.
State inspectors, who were empowered to determine whether the services required the site to be licensed, determined that HomeFirst had violated the regulation. They gave the company time to modify its
procedures to avoid the need for licensing and then accepted HomeFirst’s publicly
undisclosed descriptions of its value in the community and of its planned
changes.
3.
Master
Leasing Requirement – Client files included copies of rental agreements
that did not conform to the master leasing requirement. I described to the San Francisco office of the
U.S. Department of Housing and Urban Development the number of clients and the
amount of lease expenses that did not involve master leases. HUD ignored whether the proof was adequate or
could have been made adequate, and it continued to pay amounts unrelated to
master lease arrangements. After I was
fired, HomeFirst changed its procedures to comply with the regulation but did not repay any amounts.
4.
HUD
Liability – HomeFirst’s $1.2 million HUD overbilling was proven by
comparing invoices to actual eligible expenses for the periods and contracts
under consideration. I provided an
Excel-based analysis of roughly 300 invoices and documented expenses to HUD in
July 2008. HUD did not attempt to test
the proof, which it believed might understate the overbilling. It has not demanded any repayment what was overbilled.
5.
City
of San Jose Advance – This violation occurred simply with the passage of
time: HomeFirst held the money legitimately during the contract term, but at
the end of the contract it continued to hold the money, illegitimately. The violation was acknowledged by
all parties. The City eventually forgave the debt (by allowing the amount to be
applied retrospectively to pay for different expenses), making the violation
moot.
Proof has been unconfirmed in
others:
6.
Bid
Collusion – Emails between the HomeFirst CEO and the President of Downtown Streets
described their arrangement: HomeFirst would not bid on a City of San Jose contract
and in exchange Downtown Streets would include payments to HomeFirst in their
bid application. My description of HomeFirst
CEO’s plans to collaborate with another competitor on a different grant
application in order to improve our competitive position was evidence of a
second violation. The U.S. Department of
Justice found the proofs unconvincing, and the State Attorney General did not
evaluate the proof.
7.
EHAP
Loan – The HomeFirst actions that violated sections of its loan 2009 agreement
were summarized in the waiver request letter I sent to EHAP (the State of
California’s Emergency Housing Assistance Program). But proof required investigation and, as far
as I know, EHAP never attempted to verify the information.
8.
Food
Handler Cards – My call to Santa Clara County Department of Environmental
Health stated that several HomeFirst food staff did not have the required
cards. Proof could be found by comparing
a list of HomeFirst’s food workers with a list of card holders or with copies
of their cards. During a Department
inspection, HomeFirst provided copies of some cards but the inspectors did not ask
how many cards should have been on hand.
The inspectors sought assurance that HomeFirst was on top of the issue,
not proof of any past wrongdoing.
9.
Payroll
Taxes and Minimum Wages – Evidence that wage and taxes payments were not
made could be found in HomeFirst’s payroll records, but the central question
was whether the New Start clients should have been paid at the minimum wage rate. To prove that point, I described to the State
Department Industrial Relations, the U.S. Department of Labor, and the City of
San Jose the reasons why I believed those individuals qualified as employees. Only the City requested payroll records from
HomeFirst to begin the proof, but the company has refused to comply with the
request (as of May 19, 2016).
HomeFirst’s alleged wrongs included improper use of
government funds and violations of laws concerning wages, food safety, residential
care facilities, and antitrust activities.
Whistleblower complaints reported in media over the past few months
cover a wide range of wrongs:
-
Sexual harassment[2]
-
Improper accounting[3]
-
Misappropriation or misuse of funds[4]
-
Violations of laws (assault, biased hiring,
animal protection, & racial profiling in security operations)[5]
-
Conflict of interest[6]
-
Wrongful business practices[7]
-
Workplace safety[8]
-
Illegal direction by supervisor[9]
-
Client fraud[10]
In some cases these complaints were confirmed in court or
other agency decisions, but in every case the alleged wrongdoer claimed
innocence. We whistleblowers must admit
that other observers, even if sympathetic, cannot always be certain that our
allegations are correct. Evaluation of
evidence takes time and resources that some choose not to apply. After a complaint is validated, it may be
overturned (as in the case of Bank
of America), ignored (as with HomeFirst’s County overbilling and the HUD
overbilling), or forgiven (as with HomeFirst’s City of San Jose advance) by
authorities.
We are reassured when the accused wrongdoer is
officially found guilty, but we cannot depend on that confirmation. Snowden’s case was strengthened when
legislation was passed to limit somewhat domestic collection of phone data, but debate
continues whether he acted properly.
Ellsberg, who acted after years of anti-war protests by others, was
justified morally by the uproar around the Pentagon Papers and legally by the
dismissal of his court case, but the war in Vietnam continued for two more
years. Even the greatest whistleblowers’
victories are seldom clear-cut.
If the whistleblower is vindicated, the wrongdoer may still deny
guilt. When vindication does not
come promptly, those who retaliate against them are quick to publicize their
innocence, as when HomeFirst stated that I “just raised problems (not
all of which were even real)”.
We cannot expect our every complaint to be validated, but
when others retaliate against us we should hope for support and vindication.
[1]
Clermont, Kevin M., Theodore Eisenberg and Stewart J. Schwab. “How
Employment-Discrimination Plaintiffs Fair the Federal Courts of Appeals.” (2003) Cornell Law Faculty Publications. Paper 296
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