Ups, Downs, and Lulls

Ups, Downs, and Lulls

From the outside, whistleblowing looks like an event that results from one difficult decision, which might be viewed as heroic or selfish, justified or wrong-headed.  But in reality whistleblowing extends in time and involves emotional highs and lows scattered among long periods of inaction.

I identified HomeFirst’s first violation – overbilling the County of Santa Clara – in July 2013.  My discovery began with a suspicion that we had been billing the County on the wrong basis (per diem rather than actual cost) on two contracts.  That started a month of energy and anxiety.  I emailed Martha Paine, a finance director at the County, who confirmed that we had done it wrong.  I let my boss, CEO Jenny Niklaus, and Chief Program Officer Hilary Barroga know.  Niklaus was understandably upset and said I had created a big problem by talking with Paine.  She and Barroga would work it out.  I spent days nailing down the overbilled amount and coming up with an explanation for the Board.  The Board Chair told me not to let outsiders know if I found any more compliance problems.

Then months passed without anything happening.  Paine met a couple of times with Niklaus and Barroga, but she did nothing.  Niklaus told me she pitched a quasi-repayment idea to a County manager, but he was not interested.

Finally in February 2014 I made a formal complaint to the County.  Nervous energy, then again nothing.  Two months later after research into the issue, I came up with a complaint to the State Attorney General about HomeFirst’s fraudulent billing.  He said he didn’t care.

In June 2014 after more research into the funding source for the contracts, I came up with a new strategy: a complaint to California’s Mental Health Services Oversight and Accountability Commission.  No response; follow-up; no response.  Finally after another month I had a telephone conversation with someone who worked for the Commission.  I was excited and optimistic that I had found an entry point.  Then nothing happened – my contact could inquire, she said, but had no leverage – until April 2015 when she sent me a copy of a letter from the County saying it couldn’t get the money back from HomeFirst just then.  It would wait and see.  I sent follow-ups and another complaint to the Commission but was ignored.

In July 2014 I decided on another tack: I would approach County management.  They would have an interest.  My letter to the County Executive failed to get a reply.  Sigh.  In September I came up with a letter to the County Supervisors – I sent it to all of them just in case.  When Supervisor Simitian, who represented my district, wrote back, I replied pointing out the errors in his letter.  That reply was ignored.  In April 2015 I pitched him the letter I had received from the Commission, but he didn’t answer.

In June 2015 I wrote Simitian again and mentioned that the County’s behavioral health department had given HomeFirst $300,000 in a grant that was written and would be monitored by Barroga, who had left HomeFirst and joined the County.  The department had told the Board of Supervisors that the grant was to help HomeFirst make payroll, but it ignored the overbilling.  Simitian sent my letter to the County Attorney saying he was concerned.  I got a little excited but didn’t need to because nothing happened after that.

Every month or so I sent out follow-up messages to the Commission and Simitian, but no one answered.  With each new letter and each follow-up my hopes rose briefly as I thought that maybe this time the result would be different. 

In April 2016 I wrote to Simitian summarizing my various communications over nearly three years and pointing out that the County had not even tried to recover the money despite Simitian’s assurance that it would be collected by June 2015.  This time he forwarded the letter to Paine who wrote me saying that she was working with HomeFirst on a repayment plan.  I was excited by the apparent progress.

Then nothing.  In August I followed-up with Paine, who did not reply.  I requested public documents which revealed evidence of Paine asking and HomeFirst demurring.  No payment plan.

In October 2016 I requested copies of the County-HomeFirst communications again.  The County misplaced my request.  After I followed-up again, I found that communications with HomeFirst had stopped for no apparent reason in August.  So I wrote to Simitian again.  We’ll see if he responds.

When people describe the courage of whistleblowers, I’m not sure where exactly they see that courage.  Whistleblowing can go on for so long that there are multiple opportunities for courageous decisions.

In this case, I made decisions to investigate, to reveal the problem to my boss, to push back on the Board Chair when she said not to make reports externally (earning me a reprimand from Niklaus and setting the stage for my termination nine months later), to file the first complaint with the County, to reject HomeFirst’s settlement offer that would have barred future complaining, and to keep plugging away with more follow-ups and complaints to different parties.

The whistleblowing project can go on for years before the initial wrong is resolved and the retaliation is corrected.  Litigation can be cut short with a settlement like the one my attorney proposed to me, but then you have to live with its consequences including non-disclosure and non-disparagement requirements.  And you still could have trouble finding a replacement job.

Lawsuits that are not stopped with settlement agreements can go on for three, five, ten, or more years.  They are finally concluded when one side – usually the whistleblower – runs out of money to fund the scores of motions or after the last appeal of the penultimate judgment.  Proof of the whistleblower’s courage is muddled, at best.

The many ups, downs, and lulls spread over years make clear why the whistleblower’s supporters lose interest.  Most of them knew the mission would probably fail anyway.

For the whistleblower, the investigating, disclosing, and persistence do not form a discrete undertaking that can be shucked painlessly.  The entire process – what led to the first inklings of a problem through the eventual resolution or abandonment – forms an essential element of life.  Just one more thing that didn’t end quite as might have been hoped.