Sunday, February 12, 2017

What Do We Hope To Achieve? (Part 1)

What Do We Hope To Achieve? (Part 1)

Whistleblowers and their supporters hold that whistleblowing is a prosocial activity[1] undertaken to benefit nearly all of us by identifying wrongs so they can be corrected, making the world a better place.  Those who justify retaliation against whistleblowers argue that those do-good contentions are a ruse and the real reason for disclosures is to harm the organization and benefit themselves.  For them, whistleblowers are loose cannons from whom the organization must protect itself[2].

When I launched what would become my whistleblowing venture, my interest was technical rather than either prosocial or harmful to the company.  I had identified a billing mistake that simply needed to be fixed.  Like many who become whistleblowers[3], I was just doing my job.

HomeFirst’s CEO and Board Chair responded to the overbilling problem, which could have led to a $140,000 repayment, by trying to limit future disclosures in order to protect the financially vulnerable company.  Early on – some ten months before she would fire me – an adversarial relationship formed between the company and its whistleblower.  On neither side was morality or ethics a determining factor.

Four weeks after identifying the billing violation, I raised the question of licensure at a large HomeFirst location.  Again, the issue was a peculiar one that the CEO saw as a threat to HomeFirst.  This time, however, I was aware that I was stepping into a dark territory, and she blew up, as might be expected under the circumstances.

Nearly all of the misdeeds identified by whistleblowers are violations of law, regulation, or contract.  As such, they lead us to a technical question: does an activity violate some rule or another?  As for any white collar criminal[4], HomeFirst’s intention to violate rules was ambiguous and could only be teased from its past actions.  Whether or not legal guilt was proven by its intent, the organization would be harmed in some fashion if forced into compliance.   

While it fends off harm from the whistleblower, the organization denies that any rule was broken.  The issue is a mere technicality; it belongs to a world of banalities[5], not ethics.  Managers begin an investigation that could last indefinitely, and they likely retaliate against the whistleblower.  Their decisions feel tactical, not ethical.  When HomeFirst’s attorney Bob Shuman advised Board members to fire me, no moral analysis was involved.  His was a business decision to rid the company of someone who could sabotage the company by revealing more violations.

When I poked at the CEO with the licensing problem, I followed a pattern of jabs I had made earlier concerning what I considered unrealistic budget assumptions; digs about the company’s failure to disclose disappointing client results from its social service programs; and cuts about the continuing financial losses.  I was evidently no ethical soldier doing my duty; baser motives were at stake.

Once we set aside the notion that the whistleblower is a moral hero who speaks truth to power and exposes corruption, we are left to wonder what whistleblowers hope to achieve. 

Beginning in frustration, we whistleblowers may hope to wreck a sort of vengeance on the organization or its leaders, and we may succeed to a great or lesser extent.  During the past five years, the Securities and Exchange Commission awarded whistleblowers more than $100 million out of more than $500 million in sanctions against companies.  Since 2007, the IRS has collected $3.4 billion as a result of whistleblower tips and paid out $465 million in awards to tipsters.  In 2016 alone, the U.S. Department of Justice collected $4.7 billion from companies as a result of False Claims Act suits by whistleblowers; $31.3 billion has been collected from offenders since 2009.

Those global successes sum the happy results of many individuals.

Anonymous whistleblowers provided information that led to the conviction of Dr. Robert Windsor for filing medical claims for services he did not provide.  In addition to taking a jail sentence, Windsor agreed to pay the U.S. Department of Justice $20 million in settlement of whistleblowers’ suits under the False Claims Act case.  A portion of the amount will be paid to the whistleblowers as a reward for their information.

James Crowley, an attorney and manager at Chicago State University, was fired after he identified misdeeds by the university president and responded to an FOIA request concerning the actions.  The president retired in the hubbub.  Although not involving a government reward, after seven years Crowley's suit resulted in a $2 million win, which was later increased by $1 million after the university failed to pay as ordered.  The university is suing its attorneys for their performance in the case.

The less satisfying results of other actions test our hopes for retribution.  [To continue.]




[1] For example, Dozier, Janielle Brinker and Marcia P. Miceli.  “Potential Predictors of Whistle-Blowing: A Prosocial Behavior Perspective.”  Academy of Management Review 10.4 (1985): 823-836.  Miceli, Marcia P., Janet P. Near, and Terry Morehead Dworkin. Whistle-blowing in Organizations. New York: Rutledge. 2008
[2] For example, Sanford Wadler and comments by HomeFirst’s CEO to its Board and the advice of its attorney.
[4] Friedrichs, David O. Trusted Criminals: White Collar Crime in Contemporary Society. 3rd ed. Belmont, Cal.: Thomson Higher Education. 2007
[5] Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. Revised and enlarged edition. New York: Penguin Books. 1994

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