Sunday, January 8, 2017

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 requirementsHe 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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