Tuesday, August 29, 2017

Whistleblowing & Getting Even

Whistleblowing & Getting Even

Whistleblowing starts with a dissatisfaction.  Which becomes an itch that eventually finds an ethical violation.  It did for me anyway.

The ethical violation is usually real enough.  It deserves disclosure.  But the whole thing starts earlier than that.

We want that ethical violation to be corrected, sure.  But we also want something else.  We want to get even – for the retaliation or for something before that.  The problem is whistleblower cases can drag on for so long that no one is left to get even with.

The board chair so hot to be rid of me, Suzanne St. John-Crane, left HomeFirst Services of Santa Clara County five months after I was fired.  CEO Jenny Niklaus left after seven months.  Treasurer Gary Campanella quit the board a year after he and Niklaus fired me.  My HomeFirst peers, the development and program officers, decamped.  My staff have gone.  Three of the five program managers work elsewhere.  Over the three years, nine of the eleven board members moved on.

Lots of times, whistleblowers settle their lawsuits against the private companies that retaliated against them.  Their agreements prohibit them from ever discussing their cases[1].  That secrecy produces an empty sort of getting even.

It’s nearly as empty when the people who let you down and the people who harmed you are gone.  No one who is left knows or cares anything about you.

Whistleblower cases in the public sector, where staff turnover is lower, are sometimes different.  Master Corporal Brandon Eller joined the Idaho State Police in 1997 and moved to ISP’s Crash Investigation Unit in 2004 .  Things went well enough for him until 2011.  On October 18, Deputy Sheriff Scott Sloan responded to a 911 call.  Traveling at 115 mph down the left side of a two-lane road, lights flashing, Sloan struck Barry Johnson’s car as he turned into his driveway.  Trooper Justin Klitch, the investigating officer, called Sloan’s an unsafe operation.  The draft report by Corporal Quinn Carmack concluded Sloan’s reckless driving caused the accident.

Captain Richardson and Lieutenant Kelley called a meeting with Eller, who had interviewed Sloan.  They pressed him to agree that Johnson’s slightly elevated blood alcohol level was the real cause of the accident.  He refused.  Then Richardson and Kelley urged Carmack to modify his report to shift blame to Johnson.  He also refused but agreed to mention the alcohol blood level and Johnson’s possible failure to put his turn blinker on.

Sloan was charged with vehicular manslaughter.  During the April 2012 preliminary hearing, Eller and Carmack testified to these facts.  By this time Klitch had changed his mind and said Sloan had not driven recklessly at all.

ISP Lieutenant Kelley, Captains Richards and Zimmerman, and Majors Hudgens, Rollins, and Wills met with Sergeant Rice, who supervised Eller.  They told Rice that Carmack and Eller had “laid them out.”  They talked about taking the men off the crash unit.  A few days later Colonel Powell met with the officers and Rice.  They decided that Eller and Carmack could not be trusted.

Eller was reassigned to patrol duties, and he began getting negative reviews[2].  He filed a lawsuit and recently won a $1.5 million jury award.  Seven years after the incident. 

This whole time Eller and Carmack have continued to work with ISP.  Sloan was fired but not convicted due in part to Klitch’s testimony.  Rice was reprimanded for concealing evidence in the case, but Klitch, Kelley, Hudgens, and Wills all remain with ISP, working at higher level jobs.

It took HomeFirst just two months to fire me after I admitted disclosing its suspected wrongdoing.  Those two months were miserable.  Niklaus was nasty.  Board members carped.  The old friendly conversations were replaced with cool suspicion.  Everyone at a distance.  I can’t imagine living through what Eller has for seven years at ISP.

Whistleblowers who try to stick it out often give up.  They quit and claim constructive discharge[3].  Or they feel forced to retire[4].  When they do, the company is quick to claim that the whistleblower wasn’t fired; she quit[5].

Now that Eller has won his lawsuit, maybe he feels he’s beaten a bad lot of people.  Some do feel vindicated[6].  If I ever win my complaint against HomeFirst, I doubt that I will feel satisfied.  The people who caused me to turn to the State have vanished.  They will never need to admit wrongdoing.  They will never feel remorse for what they did.  An insurance company will pay the settlement amount, and the company will delete a footnote in its audit report.

I suspect that my itch will continue[7].





[1] See the agreement that HomeFirst proposed to me as an example.
[2] Eller has been variously accused of having a negative attitude and poor communication skills, being a disgruntled employee, causing dissension, failing to complete his work, and failing to maintain high standards of personal and professional responsibility.
[6] For example, Maeve Kennedy Grimes and Ian Minto
[7] Compare Robert Purcell.

Tuesday, August 22, 2017

Whistleblower Requests for Public Documents

Whistleblower Requests for Public Documents

Real journalists use the Freedom of Information Act to obtain government documents that expose important stories.  For example, how FBI staff support Ex-Director Comey.  And how conservative Sinclair Broadcast Group has avoided regulation since Donald Trump’s election.  Real journalists seem to know how to use the FOIA to get information people deserve to see.

California’s Public Records Act of 2004 makes state and local records publicly available, mirroring the access FOIA provides for federal documents.  I sent my first PRA requests to Santa Clara (California) County in June 2014.  I asked for information concerning my whistleblower complaints about HomeFirst’s contract overbilling and food handler card violation.  The County attorney replied that everything was protected by attorney-client privilege.  I got nothing.

Also in June, I asked for copies of emails and reports from the City of San Jose relating to my bid collusion complaint.  Its attorney said all of that was protected except for the City’s short note to me saying there was no problem.  I filed a State records request about my complaint that HomeFirst had violated its EHAP loan requirements.  It answered that it could not find the complaint.   Clearly I did not have the technique perfected.

Then I narrowed my focus.  I would investigate HomeFirst’s repayment of the $1.2 million it had overbilled HUD and the $140,000 it overbilled the County.  Specifically, HUD’s and the County’s communications with the company about paying back the money it owed.  Involving specific people and departments in HUD and the County and with limited date ranges, lest there be any confusion.

After filing three complaints with HUD’s Office of the Inspector General on the overcharges, I made 9 FOIA demands over the past two years.  Two were lost or ignored.  The others yielded small bits of information, but they revealed no serious attempts to get the money back.  HUD is supposed to provide materials within about a month, but they dragged their feet for six months on the last one.  Even though suspected violations of law are involved, the HUD FOIA liaison now wants me to pay for some of the costs.  So I have to appeal that demand.

Recently HUD has taken another new tack.  It’s asking HomeFirst for permission to release communications to me.  HUD relies on the FOIA Exemption 4, which protects trade secrets and commercial/financial information.  Since we’re talking about repaying a lot of money, HomeFirst might well seek to keep the records secret.  Still, HUD previously sent me a copy of HomeFirst’s July 2016 “distress letter,” admitting that it could not repay the money[1].  Maybe I will get something interesting.  We just passed HUD’s 20-business-day deadline for responding to my most recent ask, and I have seen nothing yet.

Santa Clara County has been, by comparison, a pleasure to deal with.  The County website directs inquiries to the Environmental Services Department.  They tell me when they forward my emails to the right department.  They won’t tell me who I should have sent it to.  But we have our routine.  Every couple of months I ask for copies, and a month later I get something back or am told there is nothing available.  No demands that I pay for the material.  As with the HUD overbilling, there’s no sign that HomeFirst’s swindle of the County will be undone soon.

My three years of sending out 33 requests for public documents have produced little of any value.  Occasionally a government employee felt prodded to take a small step toward investigating my complaint.  Mostly the responses confirmed how little I have accomplished with my disclosures.

We read about whistleblowers who win big settlements[2].  And about those who are lionized for their sacrifices[3].  While not diminishing those real sacrifices which no sane person would welcome, it is worth noting that most whistleblowers fail silently.  Most weeks bring soon-forgotten stories of those who lost[4].  Most of whistleblower complaints to California’s Department of Industrial Relations, for example, are dismissed without consideration.  Of the others, 75% are decided against the complainant.  We hear nothing of them.

If we seem to accomplish little through our efforts, that is no reason to stop doing what we can.  Living and fighting seem to me the only viable choice we have.  Regular complaints and public record requests are part of the fight.




[1] The letter went undisclosed in HomeFirst’s 2016 audit report, published in October 2016.
[3] Like Chelsea Manning.
[4] For instance, in 2012, Brian Donlon, a social studies teacher at Richard Montgomery High School (Rockville, MD), complained that the school was manipulating AP scores.  The school did not investigate but retaliated against him, he felt.  Five years later, the Maryland Court of Special Appeals decided that the state’s extensive oversight of the school didn’t count toward making him a state employee.  As a result, he deserved no whistleblower protection.

Following a 20+ year military career, in 2012 Steven Kalch was hired by Raytheon to work in Afghanistan on a military contract.  He soon noticed that Raytheon employees were not working the hours charged to the government.  He complained.  A lot, apparently.  Raytheon people called him rude and said he created a hostile environment.  He was fired in January 2014.  The U.S. District Court ruled this month that Kalch had not proven that Raytheon did not perform per its government contracts.  No protection.

Tuesday, August 15, 2017

The Mystery of Whistleblowing

The Mystery of Whistleblowing

Whistleblowing seems to me a curious subject.  The primary mystery is figuring who will become a whistleblower.  Marcia P. Miceli, a professor at Georgetown University, has written and co-authored research since 1982 on whistleblowing and who is likely to become a whistleblower.  She and others[1] have considered many possible reasons for the decision to turn against the organization.

Personal qualities – like gender, age, extroversion, religious fervor – do not provide convincing explanations why people become whistleblowers.  Situational factors – such as job, organization size and culture, industry – do not predict well.  A core puzzle: why do some disclose wrongdoing while others with the same opportunity stay silent?  At HomeFirst, I revealed possible misdeeds, but the Chief Program Officer, Chief Development Officer, several Program Managers, and members of the Board stood quietly while I was fired for it.

We feel good about whistleblowers when we witness their moral courage.  So brave, they speak truth to power.  The organizations, of course, call them traitors, poor performers, and problem cases.  But when we read their claims about the resistors, our confident admiration can soften.  The whistleblower, who is accused of tasering his girlfriend, brutality, stealing from a client, biting police officers, or making a racist Facebook post, may not be the moral hero we would imitate.

James Damore published a memo baring Google’s liberal biases.  He disagreed that gender gaps in pay and power necessarily imply sexism.  Biological differences to help explain unequal rewards for men and women in the technology industry, he said.  This wins him praise from alt-right voices and criticism from those who have experienced the sexual bias that Damore dismisses as natural. 

Damore insists that his paper was a protected discussion of workplace conditions: he is a whistleblower.  Goggle contends that he violated Google policies and it had every right to fire him as an at-will employee.  It is the familiar whistleblower-company debate.  But mixed with more than the usual moral ambiguity.  So ambiguous that whistleblower Damore takes a position precisely opposite that of whistleblower Ellen Pao.  Pao won praise for calling out sexual discrimination at the powerful Silicon Valley law firm Kleiner Perkins.  Still she lost her lawsuit against the firm.

Interior Department scientist Joel Clement was reassigned to an accounting department job because the Trump administration rejects his research findings on global warming.  Clement expands whistleblowing in a new direction.  His environmental stance is far from uniquely courageous.  Instead Clement joins a majority of Americans and most world leaders in believing that the climate is changing.

In the early days of whistleblowing[2], the misdeeds we disclosed were impressive and we were noble.  Today the whistleblower umbrella is open wide.  It covers employees who do their jobs and those who bear a grudge.  The moral and immoral are included.  Those who fight for public good and those who rationalize private benefit are embraced.  We praise individuals who stand alone and those who join with millions to voice their concerns. 

Whistleblowing is speech that happens to offend someone in an organization.  It’s natural, and it should be unexceptional.

Tuesday, August 8, 2017

The Whistleblower and Ethical Order

The Whistleblower and Ethical Order

When I began my whistleblowing, I envisioned a world of right and wrong.  An order I could rely on.  I expected that I would disclose a misdeed and it would be corrected.  I thought that the board of directors would enforce company policies to protect me from retaliation.  I assumed that the government would follow its rules and defend me after the retaliation. 

That view of the world is shared by others.  They applaud us as prosocial and solvers of organizational problems, who resist evil.  On National Whistleblower Day, Senator Chuck Grassley praised whistleblowers as patriots and heroes.  It’s an attractive way to see things.  We have a good guy up against a bad guy.  We encourage good guys to speak up, protecting them from harm when they do.  In the end, the good guy wins, either outright or in our hearts. 

Sometimes life goes in that satisfying fashion.  Jacquelyn Ferentz joined the police department of tiny West Wildwood, New Jersey in 2001.  When her boss took a leave of absence in 2008, he named her acting police chief.  Then things got interesting.  In May, a borough election brought in Herbert Frederick as mayor, replacing Christopher Fox (who shared a house, but no romantic relationship, with Ferentz).  Ferentz and Fox signed petitions to recall Frederick. 

Mayor Frederick began interfering in police affairs and went afoul of the law, Ferentz thought.  Frederick said that Ferentz violated various laws herself and suspended her without pay in March 2009.  She was subsequently reinstated but not before she lost her home to foreclosure.  Ferentz sued the borough and Frederick.  Fredrick avoided conviction for wrongdoing but did not seek re-election.  Ferentz remains police chief in West Wildwood, and Fox is back as mayor.  And last month, a jury awarded her $1.165 million for economic loss and emotional harm.

Ferentz won out because her community endorsed a system of right and wrong – and she was in the right.  Other whistleblowers[1] have not been so fortunate.  Joel Clement was director of the Office of Policy Analysis at the U.S. Department of Interior.  He argued that science should inform government environmental management and guide Department of the Interior practices.  His scientific research emphasized the catastrophic effects of global warming on arctic populations

President Donald Trump and Interior Secretary Ryan Zinke disagreed with his conclusions.  In June Zinke announced that about 50 Department employees would be reassigned.  Clement’s new job is in accounting – a senior advisor for the Office of Natural Resources Revenue.  He complained to the U.S. Office of Special Counsel that the Trump administration retaliated against him for raising awareness of the dangers of climate change.

Despite the findings of scientists like Clement, a significant portion of the voting public – and the administration they elected – thinks Clement’s environmental views are a political, not ethical, challenge.  For them, he argued in favor of an uncertain understanding and ignored the real economic damage from environmental protection.  For them he was not pro-social or a problem solver; his candidate lost the election is all.  He hardly qualified as a whistleblower.

Most organizations claim their dissidents are not whistleblowers.  They are disgruntled employees.  Poor performers.  Or, as HomeFirst labelled me, problem creators, not problem solvers.  Whistleblowers overvalue ethical order, making them headaches for managers like HomeFirst’s CEO.

When judgments go against us, we whistleblowers may not be sure if the community or just some rogue bureaucrat made the decision.  Clement spoke out through the Washington Post and other media after a line of powerful authorities opposed him.  Most of us, though, are turned aside by organizational minions. 

When the Department of Justice attorney told me that they did not like to hurt organizations that do good, as she supposed HomeFirst did, I could not be sure if she spoke for our federal government.  I only knew that my complaint about bid collusion had petered out.  Investigations of HomeFirst’s federal and county government overbillings drag on for years.  Other complaints[2] were simply ignored.

Arbiters of right and wrong seldom emerge in whistleblower cases.  Power – generally bureaucratic power – more often prevails.  It is an ultimately unsatisfying business we are in, whether we win or lose.