Monday, September 25, 2017

What Were They Thinking? (Part 2)

What Were They Thinking? (Part 2)

Some whistleblowers, including Debra Halbrook and me, see a wrongdoing and disclose it for good legal reasons.  Some also have a personal interest in their complaints.  Maybe they weren’t paid properly or work conditions were unsafe.  Some are lured by the chance of a big reward.

But for all, our motivations include a mix of legal, ethical, and personal reasons.  Take Dr. Lori Jespersen, PhD from Argosy University, past professor at Wright Institute, and author.

The California Department of Corrections and Rehabilitation (CDCR) hired Jespersen in 2008 as a clinical psychologist/clinical case manager.  When she moved to the California Medical Facility in Vacaville in 2009, Jespersen might have known what she was getting herself into.
 
The justice system has long been unkind to many, including those in the LGBTQ community. As a partial remedy, the federal hate-crime law was expanded in 2009 to include crimes motivated by the victim’s sexual orientation and gender identity.  Despite the 2003 passage of the Prison Rape Elimination Act (PREA), a 2012 survey found that LGBT inmates were at least 10 times more likely to be sexual victims than heterosexuals.  As a self-identified lesbian, Jespersen was sensitive to the special protections LGBTQ prisoners deserve under the Department of Justice’s 2012 standards

In California, the prison system was a confirmed failure in serving the mental health needs of its inmates.  In 1990 the CDCR was sued for providing inadequate mental health care.  Following another suit in 2001, system was placed under federal control in 2006 for continuing to inflict cruel and unusual punishment[1]

Still, Jespersen said she was happy in her job until July 2014.  That was when she saw three CDCR employees use Facebook to out a transgender prisoner she was treating.  They broke HIPAA privacy rules, she thought.  She complained without effect.  In December she complained again, this time about the hostile environment created by the three employees, who had not been disciplined. 
May 2015 was a tough month for Jespersen.  She protested more about the HIPAA breach.  A CDCR trainer told staff to use respectful pronouns when referring to transgender prisoners.  Some attendees rolled their eyes, and the trainer said, I know, I know, but you want to get paid, don’t you?  Jespersen complained to her boss that a CDCR employee had disclosed her sexual orientation.  Then she was transferred out of her Crisis Bed Unit.

In August she objected that CDCR staff forced female transgender prisoners to show their breasts and buttocks.  In December she charged that an officer forced a transgender prisoner to submit to a strip search in order to recover her property.
The retaliations increased.  Officer Tia McDaniels locked her in the correctional unit alone and without a safety alarm with a prisoner serving multiple life sentences for rape.

March 2016 was another tough month.  Jespersen reported that a gay prisoner was assaulted by a prisoner who had previously attacked other LGBTQ prisoners.  CDCR staff facilitated the assault by not locking the shower door.  A transgender prisoner was mocked by an officer who referred to her using male pronouns.  The prisoner, Jespersen reported, was denied her right to complain.  McDaniels locked her alone in the unit again, this time with two prisoners.

In April and May McDaniels encouraged three groups of prisoners to assault her.  Jespersen told her boss and her union rep she was afraid for her safety.  And she filed an EEO complaint.  While out on a stress leave, her boss encouraged her to return.  She said Jespersen could work in a different unit while McDaniels was being investigated.  When she returned from leave, she was demoted, removed from direct patient care, and assigned secretarial tasks.  Then CDCR assigned McDaniels to her new unit.

Although McDaniels has since been shifted to the main mental health unit, Jespersen is still barred from direct patient care.  Mediations with the California Department of Fair Employment and Housing and the EEOC failed.  Jespersen is suing the CDCR and its officers.  She lists several counts, including a hostile work environment, retaliation, interference with her medical leave, and violation of whistleblower protection.

As Halbrook and I did, Jespersen saw legal issues: she thought CDCR staff broke HIPAA and PREA rules.  But she also saw moral misconduct to which she was especially sensitive as a lesbian who counsels transgender individuals

Jespersen’s complaints are as difficult for an outsider to evaluate as any other whistleblowers’ are.  The CDCR figured, for example, that its employees’ misuse of personal pronouns was not a flagrant wrong.  As a wrong, it was on par with HomeFirst’s failure to have the required food handler cards.  Still, it was a wrong.

Like Halbrook and me, Jespersen suffered retaliations.  But it’s easy to imagine hers were unrelenting in a brutal environment.  Certainly her physical risk far exceeded what I and most other whistleblowers have experienced.

The dangers of whistleblowing tempt some to suppose we must have no choice but to act as we do.  Or that we could not live with ourselves if we stay quiet.  After interviewing many whistleblowers, C. Fred Alford decided we are driven by a “choiceless choice”[2].  These understandings are incomplete, though.  First, we observe misdeeds throughout our lives without feeling forced to stand up.  What leads us to object on this occasion?  Second, the obligatory hero rationale, like much of moral reasoning[3], is concocted after we act.  In our justifications we conveniently leave out the less appealing drivers of our actions.

The whistleblower’s courage and persistence don’t stand on a thin reed of ethical reasoning.  Instead a rich base of motivations supports our actions.  The mix includes how we were raised, our ethical training, our desire to get rich or just even, our understanding of the wrongs, our sympathies for the victims, and more. 

What Jespersen and others were thinking when they became whistleblowers has little lasting significance.  They are characters whose complexity makes them interesting and valuable.


Tuesday, September 19, 2017

What Were They Thinking? (Part 1)

What Were They Thinking? (Part 1)

Whistleblowing breaks an individual’s life.  It alters our comfortable progress. 

In July 2013, I had been CFO at HomeFirst for 6 years.  I expected to retire from my job in a few years.  My boss Jenny Niklaus was kind of an idiot, but I had worked for worse during my 35 years in finance.  We had different opinions on the 2014 budget, but we had disagreed on other financial issues during her money-losing tenure.

When I discovered we had overbilled the County of Santa Clara, I assumed we would return the roughly $130,000.  But Niklaus went a little crazy.  I asked about a different violation, and she went crazier.  Then I broke off in a new direction, finding and revealing more violations.

In 1997 Debra Halbrook joined the office of the District Attorney for Caswell and Person Counties, North Carolina, as a legal assistant.  She did administrative work for different elected DAs over the years, but Wallace Bradsher was unique.  When he took office in January 2011, he hired his wife to work for him.  He punched walls and threw things when he got angry.  And he always carried a Glock, concealed.  He told his staff, I am the Lion and you are my sheep, which struck devoutly Christian Halbrook as inappropriate.

Shortly after Bradsher took office for his second four-year term, his wife Pam went to work for DA Craig Blitzer in neighboring Rockingham County.  Blitzer’s wife Cindy came to work as a legal assistant for Bradsher.  Except neither Pam nor Cindy actually worked much despite being paid full-time. 

When Halbrook observed Cindy’s persistent absence, she asked questions.  She was told not to worry about it.  When she noticed an Assistant DA had the payroll system open on his computer, he lied and said he was training.  She asked why Cindy and Pam earned more than she did despite having less experience.  Bradsher replied, they were worth it.  Then she learned that Cindy didn’t have time for legal work because she was a full-time nursing student.

By June 2016 Halbrook was sure that something was seriously wrong.  But she was afraid of Bradsher’s response if she brought it up.  She talked to her husband and to the family attorney.  She eventually met with the State Bureau of Investigation (SBI).  SBI told her they would protect her, and they opened an inquiry.

Bradsher’s suspicions about her grew.  He relocated her office from Caswell County where she lived to Person County where he worked, 20 miles away.  He said she could return to the Caswell office if she got her husband, the Caswell Chief Deputy Sheriff, to convince his boss to install a particular digital discovery tracking system.  The installation would enable his loyal new assistant to remain on the Person payroll.

Bradsher demanded to know what she told the SBI.  She wouldn’t say, and he accused her of being disloyal to him.  He moved her desk to a storage room.  Finally he fired her when he found out Caswell wouldn’t use the tracking system.  She was months shy of her 20th anniversary which would have brought a nice pension and life-time health insurance.

Both Bradsher and Blitzer have resigned.  Blizter turned on Bradsher, who had confessed to him he fired Halbrook for disloyalty, and pled guilty to a misdemeanor.   Bradsher’s trial continues.

At the start of it all, Halbrook lived in pleasant, small town Yanceyville, North Carolina.  She did well in a comfortable, valuable job until Bradsher troubled her.  She looked into a possible wrongdoing that she could have let go.  Bradsher insulted her, and she turned whistleblower, upsetting her life.

For his part, Bradsher was on a roll.  Running unopposed, he was re-elected in 2014.  He had a loyal staff.  Admin folks in the Caswell office deserved no attention from the Lion.  Then this woman kept asking questions, started an SBI investigation, and had to be fired.  It wasn’t retaliation; it was his right.

Small-time whistleblowers, like Halbrook and me, lead mostly normal lives and then we are blindsided.  Step by step through our dramas:

1.       Foundation
a.       Halbrook and I performed our jobs well before things went south.
b.      We became somewhat dissatisfied with our jobs and bosses, but we didn’t (or couldn’t) leave.  I stayed because of age and Halbrook because of her 20-year incentive.

2.       Problem and response
a.       We found something that seemed wrong.  Her discovery and investigation were outside her normal job responsibilities, but mine were part of my job.  She found one sort of problem, and I found several.
b.      Our questions alerted management to the risk we posed.
c.       The wrongdoings we discovered were not huge in financial terms.  Blitzer agreed to repay $48,000, and Bradsher might be on the hook for about $200,000 paid to his wife.
d.      The wrongs were not egregious in moral terms either.  The Bradsher-Blitzer misdeeds were more offensive than the usual nepotism because of their role in the legal system.  HomeFirst’s disturbed me most because of our pretense that we did great good.
e.      Halbrook and I observed simple violations of common rules, not complex ethical transgressions.
f.        Neither Halbrook nor I was personally affected by the wrongdoing unless you count misuse of our tax dollars.
g.       We talked with friends and spouses about what we should do and the risks of blowing the whistle externally.
h.      We were both encouraged to believe that the law would protect us against retaliation.

3.       Retaliation
a.       We were charged with disloyalty to our boss/company for bringing up the misdeeds.  HomeFirst argued that I should have fixed, not reported, them.
b.      We suffered retaliations, ranging from inconvenience to insult and finally termination.
c.       The retaliations multiplied as our bosses became more certain of our disloyal intentions.
d.      Our bosses/companies figured they had a perfect right to act against us regardless of laws and ethics.

4.       Response to retaliation
a.       Halbrook’s attorney has taken an aggressive approach, charging violation of whistleblower protection and the State RICO Act, obstruction of justice, and causing emotional stress.  My attorney wimped out in negotiations with HomeFirst.
b.      Because Bradsher and Blizter were elected officials, Halbrook’s case received media attention.  My case won no attention at all despite my attempts to raise interest.

5.       Consequences for wrongdoers
a.       Blitzer admitted guilt, but Bradsher fights his prosecution.  Nearly everyone at HomeFirst has moved on to new opportunities without penalty.
b.      It’s too early to know whether Caswell/Person Counties or HomeFirst will be penalized.  HomeFirst’s insurance will probably make any judgment against it painless.

6.       Consequences for whistleblowers
a.       We were both fired.
b.      My case has been underway for 3+ years and will probably continue for at least a year more.  Halbrook’s suit was filed just 7 months ago.
c.       Halbrook may collect something for pay and emotional stress.  If I receive anything at all, it will be limited to past wages.  No big payoff for either of us.
d.      We both will survive.

Like everyone else, we act without foreseeing all the consequences.


Tuesday, September 12, 2017

Whistleblowing and Social Activism

Whistleblowing and Social Activism

Whistleblowing is fraught with uncertainty.  We are troubled by questions.  Were the whistleblower’s intent were pure enough[1]?  Was the misdeed bad enough to justify betrayal of his colleagues[2]?  Was his proof was sufficient[3]?  Did the organization really retaliate against him[4]?

Clarity seems possible in restricted cases.  HomeFirst’s violation of California licensing rules, for example.  My external disclosure followed months of inaction by management.  I acted after lengthy research on the law and the company’s actions.  The Board decided to fire me two days after I revealed my disclosure.  Pretty clear.

Also straightforward: Katrina Brown, a Detroit teacher, complained about lead- and copper-tainted water at John R. King, a K-8 where 98% of students are black and 71% are poor.  She became vocal about overcrowding and overheated classrooms.  That triggered reprimands, a poor performance review, and transfer to a school far from her home.  Then she was fired.

Where wrongdoing is widespread, things get trickier.  Brown’s April 2016 objections to King school conditions fell on the heels of district-wide teacher protests over racially biased uses of dwindling resources.  HomeFirst’s licensing violation was just one of eight infractions I disclosed externally[5] and a longer list of compliance violations discussed with the Board two months before my final day.

Multiple misdeeds can emerge from a culture that encourages wrongdoing[6].  We saw that in Enron.  More recently Wells Fargo’s culture was blamed for its wide-spread false-accounts scandal.  Then came evidence that Wells had vastly understated the extent of that fraud.  And evidence that it charged borrowers for insurance they had not requested.  And it improperly changed mortgage terms.  Only time spent in research, it seems, limits the length of the list of Wells’ wrongs.

When culture is the core problem, managers like to claim their acts are the result of legitimate strategies – as Wells Fargo declared – or necessity – as Detroit’s bankrupt school district complained.  Or the fight against terrorism for the New York Police Department.

Bobby Farid Hadid was granted asylum from Algeria in the mid-90s.  He sold hotdogs on New York City streets.  He drove a cab.  He fixed copiers and got married.  Grateful for his new home, he joined the NYPD after 9/11.  He advanced steadily in rank.  He joined the vice squad.  He became a member of the Joint Terrorism Task Force working with the FBI.

Acting as an interpreter in a long cold case, he traveled to Paris.  He convinced the prime suspect’s girlfriend to turn on him.  Kargu’s confession won praise for Hadid and the other two officers involved.

Back in New York he was invited the join the NYPD’s Citywide Debriefing Team which gathered terrorism-related intelligence.  They recruited people guilty of minor crimes.  Hadid was told they wanted individuals who could go to mosques, bodegas, and other places his people went.  Sources should listen and bring back data.

After a few months, Hadid decided that the unit’s approach was wrong and completely stupid.  He would not be a part of that.  He objected.  He spent more time in his office.  The unit’s senior officers met to discuss their suspicions about him.  He traveled alone a lot.  His office was close to where confidential documents were kept.  His reports revealed discrepancies.  So NYPD transferred him to a Queens precinct that had a lot of Muslims.

Kargu’s trial began in October 2010.  His defense fabricated a romance between Hadid and Kargu’s girlfriend.  After the conviction, NYPD began an internal investigation into Hadid.  They took away his gun, badge, and uniform.  They stuck him in a room with other police outcasts to watch surveillance videos.

At Hadid’s trial in October 2012, the judge found him guilty of perjury in his testimony against Kargu.  With the felony he couldn’t sell hotdogs or drive a cab.  It took two years for Hadid to get the conviction vacated.  After he did, he asked to be reinstated.  But the NYPD cited performance issues.  He was a problem child.  His lawsuit for malicious persecution was dismissed.  Hadid is appealing but his chances are dim.

Other Muslims in the NYPD report hostile responses if they, for example, wear beards for religious reasons or speak Arabic on a phone call.  Failing to assimilate spawns resentment, they find.

Hadid does not present himself as a whistleblower.  Still his experience is familiar to whistleblowers.  Dedicated to the mission of his organization, he saw behavior that was wrong.  He called it out and was punished.  The organization claimed its behavior was necessary to do its job and concluded he should be fired. 

Whether he can rightly be called a whistleblower is uncertain.  He suffered as a result of the NYPD’s – and America’s – possibly justifiable fear of Islamic radicals.  And their unjustified suspicion of all Muslims.  Hadid’s supporters might defend his whistleblowing, but even more they are activists in favor of a just society.

Other minority groups – people without power – report ordeals that match Hadid’s.  Police disproportionately arrest and shoot black men.  Dominant whites have long demanded for assimilation from Asians, Latinos, and other immigrants to America.  Male-run businesses have long preferred to pay heterosexual males more.  Corporate managers reward themselves before their underlings.  The wealthy justify policies that further concentrate treasure close to themselves.
Social activism grew over the past sixty years to fight abuses based on race, ethnicity, gender, sexual orientation, and economic position.  And with it, whistleblowing expanded dramatically over the past forty. 

The line between whistleblowing and activism is blurred.  Joel Clement called himself a whistleblower when he exposed the Trump administration’s anti-climate-science stance to the few who had been unawareSusan Fowler sounded like a whistleblower when she described sexism at Uber.  Then she went further as an activist, presenting an amicus curiae brief against arbitration agreements that block collective employee actions against illegal employment practices[7].

Like all activists, whistleblowers do what we can and deal with the issues that touch us.  We fail only when we are silent.



[3] See “Whistleblower Opponents: Proof (Part 1)” and subsequent parts.
[5] In addition to its unresolved HUD overbilling
[7] Another whistleblower, Ellen Pao, became an activist publicly and in a corporate setting.

Tuesday, September 5, 2017

Truth & Justice in Whistleblowing

Truth & Justice in Whistleblowing

Whistleblowing tests our grasp of truth and justice.  Take James McDonough.

In April 2008 James McDonough and his wife Vanessa bought their home in unincorporated Homestead, Florida.  A year later McDonough, while out for a walk, found the car that had recently driven too fast through his neighborhood.  It belonged to Alejandro Murguido[1], a Homestead police officer.  Murguido encouraged McDonough to come and talk to him about any problem, like a neighbor and gentleman, rather than file a formal complaint.  Good enough.

On October 24, 2012, Gurguido again drove recklessly through their neighborhood.  McDonough was forced to drive off the road to save himself.  On the 29th he visited Murguido’s house and lectured him about lawful driving.  Then he walked away.

Within minutes Murguido raced up behind him in his police cruiser.  Murguido’s friend from across the street, also a policeman, joined him.  Soon six fellow officers arrived.  They detained McDonough, frisked and interrogated him.  Murguido told him not to mess with police officers.  After 90 minutes they let him go with a warning to stay clear of Murguido’s house in the future.

The incident so unsettled McDonough he could not eat or sleep.  He had anxiety attacks.  He called the FBI, who told him to report the matter to the Homestead police internal affairs department.

On November 1, he went to Campbell Urgent Care in Homestead where he told Dr. Ernesto Rodriguez about the incident.  Rodriguez wrote up his report: psychotic, schizophrenic, hallucinations, may need to go to the psych ward per the Baker Act.  Then Rodriguez called the Homestead police.  Officer Blanco arrived and questioned McDonough for two hours before releasing him.

McDonough tried to complain to the Homestead and Miami-Dade County internal affairs offices.  They didn’t return his calls.  He sought help from his State Representative Holly Reschein.  Nothing worked.

At a Citizen Advisory Council (CAC) meeting in February 2013, Major Artime of the Miami-Dade police said he would follow-up with his internal affairs department.  After the meeting two police officers held McDonough and interrogated him for 30 minutes.

Three days later Murguido filed a complaint of felony aggravated stalking and corruption against McDonough.  Homestead internal affairs officer Aquino had advised Muguido to make the charges, which were later dismissed.

In April, five Miami-Dade police officers entered McDonough’s home without a warrant.  They arrested him and hauled him off in handcuffs.  At a Miami-Dade prison he was strip-searched and held for 18 hours.  The charges were finally dropped in January 2014.

In February, McDonough met with Homestead police chief Rolle to discuss his concerns.  Rolle told him the “Police Officers Bill of Rights”, unfortunately, barred McDonough from complaining about the October 2012 incident.  He could, though, complain about Murguido’s revving his motorcycle and chirping his siren outside McDonough’s house a week earlier.  Rolle assigned the investigation to an officer that McDonough told Rolle had infringed his rights.  The officer concluded the complaint was unfounded.

McDonough continued to attend CAC meetings although he was not always allowed to speak.  He attended Homestead city council meetings, but they passed a decorum rule prohibiting comments like those McDonough presented.  He posted notes and recordings of his interactions with police on various online media sites.  He attracted some press attention.

Murguido tried unsuccessfully twice more to get injunctions against McDonough.  Then in December 2014 State Attorney Fernandez-Rundle sent him a cease-and-desist letter[2].  Acting as his own attorney, in January 2015 McDonough sued Fernandez-Rundle.  In July 2017 he won in the 11th Circuit U.S. Court of Appeals.

After five years of abuse from Homestead, Maini-Dade county and Monroe county officials, McDonough had had enough.  In August 2017 he and his wife filed (through an attorney) a lawsuit against 36 parties.  Municipalities, police officers, city officials, and the urgent care facility and doctor were all named.  They cited thirty-two causes of action, including unreasonable seizure, warrantless search, false imprisonment, violation of civil rights, and RICO Act and HIPAA violations.

James McDonough’s experiences mirror those of other whistleblowers.  He witnessed a misdeed during the course of his daily activities.  Like many others’ disclosures, the initial violation was not earthshaking.

He tried to report the wrong through established channels but was rebuffed.  Things spun out of control.  He suffered more and increasingly brutal retaliations.  He appealed to higher authorities, but none would protect him.  He developed new skills to fight his opponents.

He and his wife suffered personal attacks.  Authorities called him schizophrenic.  They called her sexually promiscuous.  They published his personal contact information.  They made false statements about them both[3].  The McDonoughs' marriage is stressed to near breaking.

McDonough also presents unique qualities as a whistleblower.  He is not a member of the organization he exposes.  Unless we accept that the offending organization is the body politic.

Most whistleblowers have financial skin in the game.  They hope to recover pay the organization denied them in retaliation for blowing a whistle.  Or they seek a share of penalties imposed on the wrongdoer.  Financial interest opens a kind of Ultimatum Game in which the organization hopes to make the stingiest settlement offer that will not cause the whistleblower to turn away in disgust[4].

McDonough lacks a financial investment in his project.  He and his attackers share no basis for negotiation.  He has only self-respect he will not trade, and they have only their precious power.

McDonough’s and most whistleblower cases struggle with evidence.  Readers often have only the parties’ statements to go on.  We are reluctant to believe our public servants could be so nefarious and commit such outrageous acts against an innocent man and his wife.  We hesitate to believe nonprofit HomeFirst which aims to help homeless people could have done so many things wrong and retaliated against me for reporting them.  Or our government would violate our privacy without good reason as Edward Snowden claimed.

In these cases justice seems elusive.  It can be easier to accept that the whistleblower is crazy, disgruntled, or a performance problem.  Discovering the truth demands long, hard work.




[1] Murguido would be the top producer on the Homestead traffic unit in 2014.
[2] HomeFirst sent me a cease-and-desist letter the year after it fired me because I continued to pursue my disclosures.  Despite my initial panicked reaction, I ignored the letter.
[3] Including that 1) McDonough is aggressive or combative; 2) McDonough is psychotic; 3) McDonough is a schizophrenic who is delusional; 4) McDonough considers himself a “sovereign citizen;” 5) McDonough is threatening and aggressive; 6) McDonough and his wife are crazy; 7) McDonough has a history of clinically diagnosed mental health problems; 8) McDonough is a “Baker Act,” who stalks police; 9) McDonough committed/commits theft of government property/resources; 10) McDonough was committed to a mental institution because his wife sleeps with cops; and 11) McDonough’s children are not his because his wife sleeps with cops.
[4] I found HomeFirst’s offer to me offensive, but my attorney (with his own motivations) advised that it was a good deal.