Anatomy of a New Decision to Blow the Whistle

Anatomy of a New Decision to Blow the Whistle

In October 2013 I identified Master Leasing violations involving HomeFirst’s contract with the County of Santa Clara and in the following month I identified the same violations in two HUD contracts.  The contracts required HomeFirst to pay clients’ rent in a particular fashion – HomeFirst should lease the apartment (the “master lease”) from the landlord and then sublease it to the client – rather than reimbursing the client for his own lease cost or paying the rent to the landlord on the client’s behalf as had been acceptable in past years.

HomeFirst elected to move very slowly in switching to master leases.  Converting the clients’ traditional leases to master lease arrangements was a hassle; some nonprofits may have obtained waivers from the new master lease requirement although HomeFirst did not; and some questioned the value of master leasing in the first place although the enabling legislation (HEARTH Act of 2012, especially in the distinction between “leasing,” which HomeFirst’s contracts permitted, and “rental assistance,” which they did not) made clear enough the intention of Congress.

While I still worked for HomeFirst, I revealed these violations to authorities, but I did not file formal complaints for a few reasons.  First, violations or not, both the County and HUD continued to reimburse HomeFirst for its ineligible “rental assistance” costs without the 25% “match” (the portion payable directly by HomeFirst) required of such reimbursements.  Second, HomeFirst’s CEO had directed the Program Officer to investigate getting a waiver of the requirement.  Third, by the time it became clear she would not get the waiver, I was catching hell for my other disclosures.

Now, I have decided to blow that whistle if I can.  I asked the County and HUD for copies of invoices and contracts that might support my contentions.  If I find adequate support, I will complain to the HUD Office of Inspector General and the County that HomeFirst improperly billed them for ineligible expenditures and I will complain to HUD that the County did the same to them.  But why?  It is three years after the fact, and HomeFirst doesn’t have a pot of overbilled money sitting around to repay them.  What is really to be gained?

I can offer some possible reasons:

-          I am doing now what I probably would have done three years ago if I had had the energy.

-          I am now safely out of the company and retaliation is unlikely.

-          What was wrong then is still wrong and should be rectified (without lapsing into obsession or scrupulosity).

-          Since leaving HomeFirst I have learned that fraudulent billings on federal contracts, like these, can pose a special threat under the False Claims Act.

-          Because I have been modestly successful in making requests for documents from these agencies, I am somewhat more hopeful of successfully supporting my complaints.

-          In the past month, I have seen tentative signs that my other complaints might be validated, and I sense some weakness in HomeFirst’s position.

-          Technically, these complaints provide a new view into the whistleblowing process based on an outsider’s access to documents and government agencies’ possibly illegitimate pardons of HomeFirst’s misdeeds at the time.

-          Even if HomeFirst no longer violates this requirement, the retention of taxpayer money falsely obtained would be an on-going wrongdoing similar to the $1.2 million HUD overbilling and the $140,000 County overbilling.

-          There is a possible revenge aspect: these complaints, combined with the others, might be enough to push HomeFirst over the edge (perhaps to shame, pain, or even bankruptcy).

In the eyes of some, the whistleblower starts off wrong and must come up with a good excuse for making his disclosure.  For others, the whistleblower is a hero because of his noble intentions, which could later be found ignoble.  My reasons may not amount to justification for either group even if they satisfy me.

Years earlier I had to overcome the loyalty argument against whistleblowing.  But now I owe no loyalty to an organization that fired me two years ago.  Loyalty to my former colleagues, who might be harmed by disclosures, dissipated after nearly all of them left HomeFirst and, anyway, they did not rise in my defense when I was fired.  My loyalty to the mission of the organization and its social value is weak – HomeFirst has spent government and private money for years without demonstrating that it has actually achieved a good result.  In denying those loyalties, I might sound a little bitchy, but after suffering retaliation loyalty arguments ring hollow to me.

Some claim that individuals should disclose information about possible wrongdoings only when they have reasonable expectations of being successful.  I am certainly not optimistic about being successful in these new complaints.  Still, I will file them with the right evidence.

Elizabeth Gilbert advised those who seek to live creatively – thinking first of writers and artists of all sorts – that they should not put too much stock in success.  It may come, she writes, but for most the external confirmation of success will be limited despite the great energy they apply.

The whistleblower has embarked on a creative life.  His reasons are his own, and he may not be successful in the end.  Gilbert advises writers and other creative folk not to give up their day jobs, and the whistleblower should be canny in how he goes about his project.  He should be a trickster who plays by his own rules, and not a martyr for the cause of nobility as the company would define it.

Gilbert encourages creative people, among whom I would include whistleblowers, to persevere.  If the work becomes too painful, you may give it up, she says.  That is all right, but if what you chose to do next does not satisfy, you may decide to return to your project knowing that you will just have to persevere.