Sunday, November 20, 2016

Flocks of Misdeeds

Flocks of Misdeeds

Whistleblowing is better seen as a long process than as a discrete event, and the wrongdoing that the whistleblower discloses usually arises from a multitude of wrongs, not a single act.

Large companies have shown how corporate misdeeds can multiply in an accommodating environment.  Recent examples include Wells Fargo’s creation of fake accounts, Bank of America’s mortgage foreclosure practices, JPMorgan’s marketing of proprietary investment products to unsophisticated investors, and faulty benefits processing by the Veterans Administration (Oakland office).  But companies do not limit themselves to one sort of wrong implemented broadly through the organization; whistleblowers can find varieties of wrongdoing within individual organizations[1].

Where one instance of corruption is found – for example, taking gifts from companies that are subject to regulation – others are likely to follow – such as ignoring legal violations from those companies.  Misusing organizational funds in one area is linked to reckless waste in others.  Nepotism begets cronyism.  Misreporting in one department walks along with deception in other departments.

Of all whistleblower stories, I read those from CFOs with the most interest.  In one, Gregg Becker, CFO at Rockwood Clinics, a nonprofit subsidiary of publicly traded Community Health Systems, Inc., refused to change his forecast – which proved accurate – of Rockwood’s 2012 loss from $12.8 million to the $4 million that senior financial management at CHSI wanted to present.  Becker was badgered repeatedly over his resistance and eventually placed on a performance improvement plan before he felt obliged to resign.  Never mind that the $8.8 million difference was immaterial to CHSI, which reported $1.2 billion in income from operations in 2012, or that Becker’s forecast was not to public investors but to finance management in Rockwood’s parent company.  Because he sincerely, if naively, believed that the lower forecast loss could be used to deceive investors, a Department of Labor judge ruled in his favor. 

It is easy to imagine Becker’s frustration in dealing with the differences between Rockwood’s actual performance and the much better results CHSI expected when it acquired Rockwood two years earlier.  It is easy to imagine pressures from all who were involved in that acquisition to cover their rear ends.  Becker was probably frustrated by Rockwood’s deficient accounting systems in the midst of those operational challenges.  Then came three months and hundreds of emails, including emails that questioned his reading skills, work ethic, and analytical abilities, from CHSI’s finance people.  It is, then, no surprise that Becker blew a whistle internally on the repeated demands to provide an inaccurate forecast.

A second story is that of Michael Hawkey, CFO of Mental Health Systems for 14 years.  MHS revenue had declined from $97 million in 2009 to $75 million in 2015, and Hawkey’s warnings of serious future cash problems were ignored.  In his February 10, 2016 letter to a major government funder, Hawkey revealed that CHS had been requesting reimbursement for unpaid expenditures, it had made suspicious payments to a consulting firm on whose board the CEO’s husband sat, and the CEO’s husband was also a highly paid senior vice president in MHS.  The County of San Diego’s special review report confirmed fully or partially Hawkey’s allegations and determined that the company had used government funds to help finance its for-profit subsidiary.

Before I formally disclosed HomeFirst’s violation of site licensing requirements in November 2013, I had internally identified violations of four other federal contracts or regulations.  By the time I was fired in June 2014, I had described 17 areas of contract violations, in some cases involving multiple contracts, as well as the anti-trust violation and the failures to return funds to HUD and the City of San Jose.

Multitudinous violations at HomeFirst and other companies can affect the behavior of both whistleblowers and wrongdoers.  First, it leads the whistleblower to believe that the wrong won’t be corrected and that wrongdoing will continue.  She revolts against a situation that must not continue and that triggers disgust even before a reasoned ethical critique.

Its steady flow of wrongdoing also leads the organization to assume a certain stance against the whistleblower.  Because the wrongful acts seem essential to its operations, timely retaliation against the whistleblower becomes important.  After I admitted in March 2013 that I had made external disclosures, HomeFirst’s attorney advised the Board to fire me immediately before I could do any more damage.  Despite the risk of a successful lawsuit, that was the best option, he suggested.  Two weeks later, the company’s CEO prepared a recommendation to the Board that I be fired before I could disclose any more problems. 

Still, the CEO and Board delayed my dismissal, planning to gather documentation to terminate me for cause in July.  As a result of that delay, I could gather more information and I disclosed the payroll-related violations in May and the food handler card violation in June.  In contrast, Hawkey and another CFO, Michele Gutierrez at Fine Arts Museums of San Francisco, were removed from their jobs days after their disclosures then fired a couple of months later.

A third factor: the greater the number of wrongs, the more widely known are the wrongs within the organization.  At Wells Fargo, fraudulent accounts were opened at offices around the country and may have been known to tens of thousands of bank employees, perhaps 2% of the organization.  Reports suggest that about a dozen people – say, 1% of CHSI’s 1,000 employees – may have been aware of Becker’s forecast problem.  At HomeFirst, a broad group, including board members, senior management, program managers and other employees, that totaled more than 15% of the company’s staff and Board members were aware of at least some of the alleged violations.

The more numerous the violations, the more culpability is shared in the organization.  Even the whistleblower can be tarred.  Hawkey, as CFO, was probably at least indirectly responsible for payments to the subsidiary and for billing the County for unpaid expenditures.  Gutierrez surely shared responsibility with the Board Chair she accused of an improper $450,000 payment.  And I owned some responsibility for several of the violations that I disclosed – such as the County overbilling, the site licensing, the master lease billings, and the payroll violations.

Whistleblowing is a messy arrangement, spread over time, and involving many characters and ambiguous ethical issues.  But at the same time, it is a straightforward issue: someone observes something that appears wrong and calls it out, and the organization responds.  Straightforward and necessary.





[1] Examples from recent news reports: Allard & Graham, Baez, Bailets, Baker, Barcia, Berylavsky, Bondy, Carroll, Crabtree, Davis and Dobbs.  The list could continue.

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