Why Do We Do It?

Why Do We Do It?

Given the high probability of retaliation and the low probability of success, why do people become whistleblowers?

One line of analysis searches for individual predictors of whistleblowing[1].  Demographics, such as age and sex, proved to be unreliable indicators of future whistleblowing.  Some situational factors provided small predictive value but seemed consistent with plausible theory: longer tenure implied access to incriminating information as did certain positions (like internal audit), greater commitment to the organization might imply a desire for the organization to act properly although it might incline an observer to conceal a wrong out of loyalty.  Conflicting situational factors could both be predictive: a sense of personal victimization from company retaliation appeared to encourage whistleblowing as did company policies that supported ethical behavior.

A second approach to understanding why people disclose organizational offenses is to ask them.  In response to a 2013 survey[2], whistleblowers said they reported misdeeds externally for many reasons: the problem continued and an outsider might stop it; insiders had not proven trustworthy in fixing the problem; the reporter feared retaliation; the reporter might get a big reward.  Other than the possibility of a reward, the responses left unclear the whistleblower’s internal motivation for making the disclosure.

Moral reasoning could be what leads whistleblowers to action, at least according to some.  James Rest[3] proposed a four-step process – involving moral sensitivity, moral judgment, moral motivation, and moral commitment – to arrive at ethical action, including blowing the whistle on a wrongdoing.  By alluding to something greater, philosophical analysis can also be handy in countering a demand for company loyalty that makes the whistleblower the greater villain in the situation[4].

Others[5] have observed that moral judgments seem to come a lot faster than Rest’s measured steps allow.  They contend that emotions and philosophical intuitions precede our philosophical judgments, which follow by way of rationalizing what we have already decided.

Another interviewer, C. Fred Alford[6] concluded that whistleblowers are driven by a “choiceless choice,” as a consequence of their accumulated experiences and prior judgments.  They feel forced to act as they do, whether by strongly held moral ideals or moral narcissism, Alford decided.  News reports of whistleblowers[7] sometimes convey that sense of nearly compulsive pursuit of their projects.

I confess that none of these explanations seem to match perfectly my path as a whistleblower.  While our personal motivations are always difficult, maybe impossible, to figure, perhaps the passage of three years has sufficiently clarified my perception of the experience.

Why I Did It

Jenny Niklaus became HomeFirst’s CEO a little more than a year after we had almost turned the company around, by cutting expenses, selling assets, and convincing funders to stay with us.  A generally pleasant, voluble young woman, she was light on experience and seemed to me to lack the intellectual toughness needed to deal with HomeFirst’s remaining problems.  Quite sociable, she was keen to make HomeFirst a leader in the community.  She cried at the plight of the company’s homeless clients, conveying her and the company’s dedication to those disadvantaged folks.

Over the next three years, HomeFirst continued to lose money.  As cash grew tight, I urged expense reduction measures, which Niklaus rejected.  We fought over the 2013-14 budget, but she prevailed with the Board in June 2013.  When a former HomeFirst development director said to me, “You know Jenny’s an idiot, right?” I could still laugh.

Preparing for the annual audit in July, I compared a per diem contract the company had recently received from the VA to a County of Santa Clara contract that I had billed on a per diem basis.  I came away concerned that the County billing was incorrect.  Although Niklaus and others were aware of the billing approach, I was responsible. 

Nervous, I hurried to research the matter before our auditors arrived.  My contact at the County confirmed that I had used an incorrect method, which had resulted in overbilling the County by about $130,000 over the course of two years.  When I had tried to conceal a minor fraud from auditors at a different company in 2005, things had not worked out as planned so I hoped to fix the problem this time.

Angry, embarrassed, a little frightened, I confessed my mistake to Niklaus the day before she was to leave for vacation in Mexico.  She blew up and said I’d made a big mistake, not for overbilling but for letting the County know about it.  After she returned, she and the program officer would deal with my contact at the County and her boss, leaving me out of the discussion and annoyed.  Maybe discussions occurred, I could not find out for sure, but three years later the amount would still not be repaid to the County.

And so I became a whistleblower.  The trigger was pulled but not because I made some ethical assessment and decision.  Not because I was overcome by a shock of emotion.  Not because I was forced to act by an irresistible internal impulse.  Instead, a gradual buildup of dissatisfaction had reached a level that I was no longer willing to dismiss or laugh off. 

In August 2013 Niklaus, two other executive staff members, and I met on a Monday as usual.  After discussing the overbilling, I raised, almost innocently, a question about our possible violation of licensing requirements at one large location.  Niklaus went ballistic spewing a litany of irrational objections, and it was clear to me, and possibly to all present, that we had carved a deep line between company and whistleblower.

These and each of my ten complaints against HomeFirst presented a potential legal violation.  Ethics were a plausible reason for my whistleblowing every time: taxpayers were cheated, homeless individuals were deprived of their rights or endangered, lies were told.  But just as much, an older, frustrated guy with no place else to go was set in battle against a company and its CEO who were under pressure and also had few easy options.  So the guy discloses deeds that might not certify the company’s guilt, and the company retaliates even if that violates the law.

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[1] For example, Cassematis, P. G. and R. Wortley. “Prediction of Whistleblowing or Non-reporting Observation.” Journal of Business Ethics 117 (2013): 615-634.  Ahmad, Syahrul, George Smith and Zubaidah Ismail. “Internal Whistle-Blowing Intentions: A Study of Demographic and individual Factors.” Journal of Modern Accounting and Auditing 8.11 (November 2012): 1632-1645.  Miceli, Marcia P., Janet P. Near, and Terry Morehead Dworkin. Whistle-blowing in Organizations. New York: Rutledge. 2008.  Mesmer-Magnus, Jessica R. and Chockalingam Viswesvaran. “Whistleblowing in Organizations: An Examination of Correlates of Whistleblowing Intentions, Actions, and Retaliation.” Journal of Business Ethics 62 (2005): 277–297

[2] Ethics Resource Center. National Business Ethics Survey of the U.S. Workforce. 2014

[3] Rest, James with Muriel Bebeau and Joseph Volker.  Moral Development: Advances in Research and Theory. New York: Praeger. 1986

[4] For example, Bok, Sisella. “Whistleblowing and Professional Responsibility.” New York University Education Quarterly 11.4 (1980): 2-10.  De George, Richard T.  Business Ethics.  6^th edition.  Upper Saddle River, NJ: Pearson Education.  2006

[5] For example, Greene, Joshua D. “The Secret Joke of Kant’s Soul.” In Moral Psychology: The Neuroscience of Morality: Emotion, Brain Disorders, and Development (Volume 3).  W. Sinnott-Armstrong (ed.). Cambridge: MIT Press, 2008. 35–80.  Haidt, Jonathan. “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment.”  Psychological Review 108.4 (2001): 814-834.  Knobe, Joshua, Wesley Buckwalter, Shaun Nichols, Philip Robbins, Hagop Sarkissian and Tamler Sommers. “Experimental Philosophy.”  Annual Review of Psychology 63 (2012): 81-99. Alexander, Joshua. Experimental Philosophy: an Introduction. Cambridge UK: Polity. 2012

[6] Alford, C. Fred. Whistleblowers: Broken Lives and Organizational Power. Ithaca, NY: Cornell University. 2001

[7] For example, Brandon Coleman, Jennifer Denk, Martin Woods

Giving Up (On Matters Disclosed)

Giving Up (On Matters Disclosed)

As we begin our whistleblowing projects, we do not think about the day when we will have to give them up.  We believe that we are right and the authorities will act against the wrongdoer.  We do not think about how long it will take and what resources will be required of us.  We do not contemplate our eventual failure.

In his 1998 federal lawsuit, Robert Purcell, a former sales vice president of MWI Corp., described how MWI arranged for $74 million in loans from the Export-Import Bank to Nigeria to facilitate its purchase of the company’s water pumps.  Purcell claimed MWI concealed from the Bank that $28 million was an unusually high commission to pay to its Nigerian sales agent.  In 2002 the U.S. Department of Justice joined in Purcell’s suit.

For 18 years, Purcell and his attorneys slogged through discoveries, motions, judgments, and appeals.  MWI claimed it didn’t know the commissions were unreasonable and, anyway, no harm was done because Nigeria repaid the loans.  At one point, the U.S. was asking for $229 million.  Following a 2013 jury trial, the plaintiffs were awarded $22.5 million, including treble damages.  An appeals court decided in 2014 that MWI was liable only for $580,000 in civil penalties resulting from its failure to disclose the commissions.  Purcell, facing opposition from the DOJ, appealed that ruling to the U.S. Supreme Court, which earlier this month declined to review the decision.

Unbowed, Purcell, 82, called the result a terrible injustice and complained that he had been unable to introduce evidence of political influence by Governor Jeb Bush and others on the case.  The way government can be bought in our country cuts him to his soul, he said.  He shows, at least in these statements, a passion that I can imagine fueling his pursuit over the 18 years, as well as a cynicism to which I – and probably many whistleblower-losers – can relate.

Mark Grissom, a vegetation inspector in the Oakland, California, Fire Prevention Bureau, complained that the department’s inspections and reports were deficient, creating fire hazards in the Oakland hills that are notoriously susceptible to wildfires.  After two frustrating years of complaints and little response, Grissom left his part-time civilian position in 2015.  Following Oakland’s Ghost Ship warehouse fire in December 2016, Grissom’s emails came to light.  The City’s Fire Chief allowed that there had been some gaps in coverage but they had been filled, and the Mayor said that they took Grissom’s complaints seriously.

Here we have two apparently ethical whistleblowers.  Grissom was very small-time, and his success is impossible to measure because the authorities said what they usually do: the mistakes were minor, we fixed them, and safety is our highest priority.  The deaths of 36 people in the uninspected warehouse fire provide conflicting, albeit inconclusive, evidence.

Purcell’s case was a bigger deal and a clear failure for the whistleblower.  The False Claims Act, which enables the whistleblower-plaintiff to share up to 30% of the proceeds from a suit, encouraged him to go on, and the U.S. Department of Justice’s joining the suit reduced his legal costs.  Still, he might have given up years earlier than he did.

It’s always a question: how far to push when we know the company will resist our complaints vigorously.  From the outside, it strikes me that the Wells Fargo private bankers, for example, should have simply quit when they realized that the accepted way to meet sales goals was to create phony customer accounts.  Maybe they could have complained to government agencies and media after finding more worthwhile jobs.  But it is hard to know what to do when you are in the fog of war.

I should probably give up on my complaint about HUD’s failure to collect any of the $1.2 million that HomeFirst overbilled 10 years ago.  I made three complaints to HUD’s Office of the Inspector General, which is supposed to investigate such things, and got nowhere.  I complained to my Senator Feinstein and got nowhere.  I made four FOIA requests for copies of communications between HUD and HomeFirst on the matter.  The first three generated snippets of information; the fourth yielded no correspondence and a $182 bill for 2½ hours of research with a reminder that I’d have to pay it before any future FOIA requests would be acted on.  I might request a waiver of the fee or send another note to Feinstein, who ignored my last letter, but it’s pretty clear after three years that this complaint is dead and HomeFirst will get away with its misdeed.

I tried even harder with the minimum wage complaint.  I made complaints and paid visits to the State agency that oversees this issue, but they did not respond.  I tried the U.S. Department of Labor, which said it had no jurisdiction.  I tried the office that enforces the City of San Jose minimum wage ordinance, which after a year and a half decided that the individuals were not covered by the ordinance.  I argued against that conclusion to the City, the DOL, and several attorneys without getting a reply.  Two and a half years spent with no effect.  That’s too bad because this is, in Purcell’s words, a terrible injustice.  The hundreds of homeless folks deserved, it seems to me, well over $1 million of unpaid compensation.  I give up.

As in the HUD overbilling case, the government shows no interest in recovering the $140,000 HomeFirst overbilled the County of Santa Clara, but so far it has not billed me for asking for copies of their communications with HomeFirst.  The six other complaints, I mostly gave up on months and years ago.  There seemed to point to pursuing them.

It’s hard to give up after we have spent so much energy and we are so confident that we are right.  The Government Accountability Project maintains a stable of big-time past whistleblowers for hire to speak out on their experiences.  Grissom quit the City of Oakland in December 2015, but he came back again a year later following the Ghost Ship fire.  Purcell seems to retain a passion for his project.

We whistleblowers may be reluctant to accept fact that our efforts have been defeated and we must return to quotidian life.  The selves we found, who rose up heroically in our projects, must be set free so we can find new battles to fight.

Transformations through the Four Phases of Whistleblowing (Part 3)

Transformations through the Four Phases of Whistleblowing (Part 3)

The retaliation that usually follows a disclosure of suspected wrongdoing is the foundation of the whistleblower myth.  Despite coming after the whistleblower’s decision to reveal the misdeed, retaliation serves to confirm the individual’s courage.  Without retaliation, the battle of good and evil would be a tepid affair, not mythic.  The enduring but painful result of retaliation is a transformation of the whistleblower’s relationship with others and her concept of herself.

Exclusion is a conventional retaliation against whistleblowers[1] because it is such a common tactic in all groups[2].  The one who is so disloyal as to criticize and disclose the group’s secrets deserves the ostracism that she receives.  The company chooses among different ways to cut her out.  She may be excluded from meetings she previously attended[3].  She may be reassigned to a location without resources or a job without responsibilities[4].  Many whistleblowers are suspended or placed on leave^[5], marking them as damaged and dangerous.  Then, of course, many are fired.

In addition to simply wanting to hurt the whistleblower, the organization hopes to keep her from information that she might use against the company and to encourage her to quit.  The company can accomplish its objective nearly without penalty.  HomeFirst’s attorney assured its CEO Niklaus that keeping me out of meetings and reducing my responsibilities were nothing I could sue them for as long as my pay and title were left unchanged.

The power of ostracism is not just its deniability by the perpetrator.  Struck to her social core, the target can find the experience painful and distressing[6].  For six years I had enjoyed working with HomeFirst’s Chief Program Officer, who had reported to me for several months after I first was hired as CFO; we had collaborated, joked, and griped together most mornings and evenings.  When she closed the door as I tried to enter the CEO’s office for our regular Monday executive group meeting, I was startled and hurt.  To see the three women gathered together, glancing at my head in the doorway, and to be told by the CEO to leave because I was not needed – my old work-buddy connections turned acrid.

Irritation and distrust that were spawned in the earlier phases of whistleblowing grew and spread to other relations.  When it came time for me to search for another job, I expected other companies to treat me as tainted and I expected I would find them stained by dishonesty.  I anticipated and found instances of dishonesty in the nonprofits where I volunteered.  It was everywhere.

Most of us experience betrayal in our whistleblowing projects – by our employers, others at the company who failed to support us, friends and family who let us down, government agencies that fail to enforce laws we claim our employers violated, our attorneys, and news media.  We experience betrayals in other parts of our lives – sometimes marriages fail, other family members become estranged, career dreams or health fail us – but we chose the whistleblower life after sensing the danger.  Like the others, betrayals that arise from our whistleblowing mark, and possibly embitter, us.

The whistleblower senses that her friends are different after they learn she was fired for blowing the whistle.  They may indeed view her in a new light after she betrays her company and forsakes her responsibility to hold a job.  Or they may simply tire of her assumed status as whistleblower[7].

Not only does whistleblowing, especially in this fourth phase, change the individual’s relationships with others, it changes her conception of herself.  To the extent that she self-identifies as a whistleblower, she buys into the role’s mythic qualities.  She may claim that her exalted professional obligations gave her no choice[8], she was the one who brought integrity to the situation[9], she had to tell the truth[10], she was devoted to the country’s guiding principles[11], she righted a great wrong[12], or she protected those who could not protect themselves[13].   Loath to be called a hero because she was just doing her job, she is open to being a Time “Person of the Year”[14].

If she defeats her attacker, in either court or media coverage, she can find vindication[15] in her role.  If she loses, she may – possibly should – reassess whether she honestly held those ideals or whether baser, less appealing reasons were also at play.  That reassessment can take years: only after 18 years did Robert Purcell lose the final appeal in his suit against the pump manufacturer he accused of making illegal foreign payments.  Resolution of this, the longest-running whistleblower case, was rigged, he concluded.

Maybe I am envious of those with high-blown motives, or maybe with the benefit of distance from the misdeeds and disclosures, I find my own noble motives less convincing.  At the time, I could point to my professional standards, personal integrity, desire to tell the truth, and wish to protect people who could not protect themselves.  My supposed rationales have not weathered well in time, and they no longer press for action against the still uncorrected wrongs.

Over the years of my whistleblowing project, I changed again.  The passion and anger have dissipated, leaving me more analytical in my critiques and more skeptical of claims by companies and government agencies that they are ethical and can be trusted.  On good days, I focus on a smaller circle of family and the people I meet.

Whistleblowing in my narrative is not simply a battle of right against wrong although legality and ethics provide a field for the contest.  The alleged wrongdoer acts selfishly and not as a result of a moral miscalculation.  The whistleblower acts in response to a more powerful entity that disregards her interests in favor of its own.  She reasserts her autonomy in the context of certain established social or legal mores.  Whether or not she does so successfully, she is human, not mythic.

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[1] Ethics Resource Center. National Business Ethics Survey of the U.S. Workforce. 2014

[2] Williams. Kipling D. “Ostracism.” Annual Review of Psychology 2007. 58 (2007): 425–52

[3] For example, Andrew Barcia

[4] For example, Sean Higgins

[5] For example, Derrick Bailey, Bennett Barlyn, Carol Bondy, Bridgette Bott, Julie Han Broderick

[6] Williams, Kipling, D. Ostracism: The Power of Silence. New York: The Guilford Press. 2001. 

[7] Miethe, Terance D.  Whistleblowing at Work.  Boulder, CO: Westview Press.  1999

[8] For example, Jennifer Denk

[9] For example, Dennis Clay, Jeremy Romero

[10] For example, James Holzrichter

[11] For example, Thomas Drake, Edward Snowden,

[12] For example, Glenda Martin

[13] For example, Patricia Williams, Helen Dragas

[14] Cynthia Cooper, formerly of WorldCom

[15] For example, Theresa Ely, Maeve Kennedy Grimes

Transformations through the Four Phases of Whistleblowing (Part 2)

Transformations through the Four Phases of Whistleblowing (Part 2)

3. Disclosure

After Divorce and Witness, in the third phase of whistleblowing the observer of a suspected misdeed decides to stand up and disclose the wrong.  She usually[1] acts first through channels provided by the company, sometimes hoping to remain anonymous.  She may begin to detect mild retaliatory actions by her boss.  She forms ethical and legal arguments that favor whistleblowing and assuage her fear of the possible retaliation in store for her if she continues.  Her patience runs thin, and she discloses the activity to external authorities – government offices, courts in what may become a qui tam suit, or news media.  Retaliation increases, often ending with her termination.

In this phase, she moves decisively off her company-assigned team.  Even if she sticks to internal reporting channels, she can no longer be trusted because she has shown she doesn’t trust management’s decisions. 

Over a period of several months Robert Klym reported to Social Security Administration management his concerns about processing failures in the office.  He first addressed managers in his local office, and later he wrote to regional administrators.  His case became more robust as he went on, and he became more closely aligned with authorities than with his local management.  Finally, he broke free entirely when he disclosed information to wisconsionwatchdog.org.

In a confidential email to the Chair of HomeFirst’s Audit Committee, I expressed my concern that the CEO Niklaus was retaliating against me in response to my questions about the possible violation of State licensing requirements.  He responded, bringing in half of the other board members and stating that they did not see a problem.  Although still on the payroll, I was off the team, and a couple of weeks later I filed my first external complaint.  Thus freed, I filed complaints concerning other alleged violations in just about each of the next eight months until I was fired.

When whistleblowers disclose suspected misdeeds externally, we hope to establish a trusting relationship with a new authority.  We provide private information to our new partner, who can be very demanding. 

The FBI asked Thomas Howell to wear a secret recording device while he acted as an informant for three years during their investigation of the Town of Ball, Louisiana.  After that the Town fired him.  Jill Osiecki was a loyal Amgen sales representative for nine years.  Then Amgen seemed to change its way of doing business.  In time she witnessed what she thought were illegal activities.  Osiecki spent 15 months wearing a wire for the U.S. Department of Health and Human Services as part of its investigation of Amgen.  She was fired in 2005 when her participation came to light.  It took the government another seven years to arrive at a settlement agreement in which Amgen agreed to pay the government $762 million in settlement without admitting guilt. 

Few whistleblowers wear wires to prove the cases against our employers, but we all collect information.  Three days after my August 26, 2013 meeting with CEO Niklaus, I sent her and the program and development officers information supporting my contention that HomeFirst was violating licensing requirements.  Over the next two months, I presented additional information to her and the Board.  In late October I began to draft a complaint letter to the State, beginning my interior conversation with my new partners at the State of California. 

4. Responses

The fourth whistleblowing phase extends from one to many years as authorities respond to the whistleblower’s disclosures and she – if she dares – responds to the retaliation she experienced.  She engages an attorney to initiate negotiations or a lawsuit, successfully or not.

When we disclose suspected violations externally, we expect to be heard by our new partners.  We don’t expect our disclosures to be lost or ignored as seven[2] of my nine were.  If we do not become discouraged and give up, disregarded complaints can launch us into new complaints and self-assertion.  But our unsuccessful efforts may also lead us to conclude that the system we had envisioned does not exist, and the partners we had hoped for do not care about us after all.

I have initiated 36 complaints, requests, and follow-ups to governmental officials and bodies about the County overbilling issue during the past three years.  Some of those officials and bodies responded although several did not and many stopped responding after a few exchanges.  In this instance, HomeFirst and the County agreed that the wrong was done, but the improperly billed amount still has not been repaid, even in part. 

When complaints are rejected by authorities, all see the value of the whistleblower’s effort as dubious.  Wells Fargo employees for years claimed to authorities that the bank was creating fraudulent accounts.  The authorities took no action, however; the employee reports meant nothing; and the bank continued operating as it had. 

A small fraction of complaints filed with governmental agencies result in decisions against the accused.  For example, from 2011, when the Dodd-Frank whistleblower program was introduced, through 2016, the SEC received 18,334 tips about suspicious behavior and, inexplicably, issued awards to just 34 whistleblowers for information that resulted in SEC actions.

After the U.S. Department of Justice rejected my complaint of alleged bid collusion by HomeFirst, the Department attorney ignored my request for an explanation.  After investigators accepted HomeFirst’s stories on the licensing issue and food handler card violation, they had no interest in my critiques of their conclusions.

The effort we put into our whistleblowing makes it difficult for us to accept that we may have been wrong about the misdeed we disclosed.  We can never be sure whether our complaint is ignored or rejected because it is unjustified, the matter is trivial, our explanation is inadequate, or our employer is simply favored.  But self-doubt may be healthier than a perpetual obsession with being proven right.

When our complaints about company misdeeds fail to pan out after years, we may distance ourselves from them emotionally.  The righteous moral fury of our early whistleblowing days wanes.  We conclude that the company and our hoped-for partners are scumbags, but we should have recognized that much sooner.  More complicated is our response to the retaliation we suffered in response to our whistleblowing. (To continue in Part 3)

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[1] Ethics Resource Center. National Business Ethics Survey of the U.S. Workforce. 2014

[2] County overbilling, HUD overbilling, EHAP loan violation, City of San Jose advance, HomeFirst payroll taxes, HomeFirst minimum wage, and master leases.