How to Justify Whistleblowing
Whistleblowing emerged from a tradition of dissent and the
muckraking of books like The
Jungle (1905), Unsafe
at Any Speed (1965), and Silent Spring
(1972). While the authors of those books
were outsiders, whistleblowers stand within the organization and disclose its
private information. Some
whistleblowers, like Frank
Serpico (1970), exposed illegality and corruption, but others, like Vietnam
War opponents John Paul
Vann (1963) and Daniel
Ellsberg (1971), condemned behavior that violated reasonable and moral
expectations.
Each whistleblower is asked to justify behavior that violated her presumed loyalty to her employer.
In Pickering
v. Board of Education (1968), Marvin Pickering, a teacher in the Township
High School District (Will County, Illinois), argued that he had exercised his
First Amendment rights in objecting to a proposed school bond. The U.S. Supreme Court agreed that his
concern was a matter of public interest and the Township had wrongly fired him
for his letter to a local newspaper.
Governmental employees found whistleblower protection
earlier and, in general, more effectively than their private employer
counterparts due in part to their assumed service for the public good. Current and former federal
employees are protected when disclosing not just violations of law, rule,
or regulation, but also gross mismanagement, gross waste of funds, abuse of
authority, and substantial and specific dangers to public health or safety. While states vary in their whistleblower
protection laws, Oregon
provides similar protections to its public employees (and, beginning on
January 1, 2017, to nonprofit employees).
James Cleavenger became a part-time University of Oregon safety
officer in 2010. A year later, when
assigned full-time to the graveyard shift, he observed fellow officers’ regular
discussions of the “Bowl of Dicks” list – individuals whom the officers
disliked. He later objected to this
wasteful departmental practice and was subjected to a wide range of
retaliations, ending with his termination in 2012. His
lawsuit claimed the university had violated right to his free speech as
well as Oregon’s whistleblower law. The
university finally agreed
in 2016 to pay Cleavenger $1 million in settlement of his claims.
Complaints about mismanagement and wasteful operations
abound in government whistleblower cases:
-
Steven
Fallon described how the Hayward, California school district squandered money
transporting special education students and was harassed as payback.
-
Ron
Klym is one of many Veteran Administration employees who have been punished
for describing VA inefficiencies and poor service.
-
Major Joseph
Lovelace exposed poor maintenance of National Guard facilities and received
performance reviews that effectively forced him out of the service.
-
The Texas Attorney General issued a
cease-and-desist letter to John
Owens, who had publicly complained that political considerations deterred the
State from acting aggressively enough on fraud charges against Trump
University.
-
After he retired, psychologist John
Schwade called out the millions of mental health dollars wasted by the
State of North Carolina in its prison systems.
-
Simon
Wade complained of mismanagement in his Arizona bomb squad and was fired
for insubordination.
Defense of whistleblowing sometimes points to the individual’s
right of free speech[1]
and, particularly where explicit
whistleblower protection laws are lacking, to common law protection of the
public interest. Charges of mismanagement
in private companies are not, however, protected activities as they are, at
least on paper, in governmental organizations.
Perceived mismanagement creates the internal discontent that
fuels whistleblowing. When I criticized the
goofy
budget assumptions of HomeFirst’s CEO, my only protection was the Board’s concern
that I might be right. After the CEO persisted
in business practices that I considered irresponsible, I turned in a different
direction and began
to find legal violations to disclose.
Of course, one person might perceive mismanagement where her boss sees the
consequence of a difficult decision.
Most whistleblower complaints involve judgment calls, not undeniable
abuses. The California State Auditor’s March
2017 report on Investigations
of Improper Activities by State Agencies and Employees listed 10 cases during
the preceding six months that cost the State of less than $20,000 in total. The State Auditor had, for example, received accusations
of the misuse of time by Department of Transportation employees. Investigation identified one employee whose
lunch and smoke breaks were found to be too long by about an hour and a half a
day during an 8-month period. The report
was silent on whether the employee offered an excuse or blamed an underlying problem.
The Santa Clara County Counsel’s November 2017 semi-annual
report on its whistleblower program referred to 44 hotline contacts. They included allegations of employees not
working a full day, poor department operations, as well as charges of possibly
illegal harassment and fraudulent billings (including my
own complaint). Nearly two-thirds of
the accusations were unrelated to significant legal matters.
It may be tempting to consider these many small complaints
as griping that falls short of real whistleblowing. Many academics and some courts[2]
have restricted whistleblowing to non-trivial matters that have broad public
significance. That inflated conception
of whistleblowing aligns with the mistaken concept of whistleblower as courageous
and supremely ethical.
Stripped of ethical baggage, the need for whistleblowing to
pass a materiality test may serve a practical purpose in determining where to
allocate scarce legal resources. The IRS
provides rewards to whistleblowers only when recovery exceeds
$2 million, for instance. My own
attorney, operating on a contingency fee basis, calculated differently: when he
concluded that case was unlikely to net him more than the $18,000 that he
negotiated in settlement with HomeFirst, he discouraged further action.
For group members, whistleblowing emerges out of a base of
discontent that reflects ethical and non-ethical concerns, matters of public
and private significance, and contraventions of law, policy, good sense, or courtesy. As a result,
the whistleblower, however strong her motivations, may not obtain the
protection and sympathy that she deserves.
Her efforts may well come to nothing beyond allowing her to act on a
felt need, to which she may retroactively ascribe moral or existential significance.
[1] Lindblom, Lars. “Dissolving the Moral Dilemma of
Whistleblowing.” Journal of
Business Ethics 76 (2007). Also Vandekerkhove, Wim and M.S. Ronald Commers. Whistleblowing and Organizational Social
Responsibility.
Aldershot, Hampshire, England: Ashgate Publishing Company. 2006
[2]
For example, Johnson, Roberta Ann. Whistleblowing: When It
Works and Why. Boulder: Lynne Rienner
Publishers. 2003; Lindblom, Lars. “Dissolving the Moral Dilemma of
Whistleblowing.” Journal of
Business Ethics 76 (2007): 413-426; Vandekerkhove, Wim and M.S. Ronald Commers. Whistleblowing and Organizational Social
Responsibility. Aldershot,
Hampshire, England: Ashgate Publishing Company. 2006; Drake v.
Agency for International Development (2008); and the case of Dale
Klein
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