Whistleblower Complaints Unbound
Most whistleblowers proceed in a disciplined manner. They observe, investigate, suggest
corrections internally, and file complaints externally. If their employers retaliate, they hire
attorneys to protect their rights and win fair compensation.
Big-time whistleblowers perform on a grander stage. Ellsberg, Snowden, and Manning are star examples. But we small-time players generally stick to
the forum that has promised us fair treatment.
Kevin
Whaley took an approach that prefigures a different future.
After
graduation from University of Arkansas, residency at University of
Rochester, and a fellowship in Virginia, Dr. Whaley became Assistant Chief
Medical Examiner in Virginia’s Office of the Chief Medical Examiner in
2007.
Certified in anatomic and forensic pathology, he worked the
morgue. The Office’s task was to determine
the causes of suspicious, unusual or unnatural deaths. He
liked his job. He saw himself as an advocate
on behalf of the dead. He taught some classes
at Virginia Commonwealth University. With
his wife and three children, he hoped to retire there in Richmond someday.
In 2008 Marcella Fierro, the Chief Examiner who hired him,
retired. Then Whaley thought the Office began
to deteriorate. He witnessed a lot of
things that disturbed him. HIPAA
violations under the watch of Fierro’s successor, for example. Payments to medical examiners for work they
did not perform. And the brain sales.
The Office contracted to provide brains of the deceased to the
National Institute of Mental Health (NIHM) with their families’ consents. Whaley figured the Office was paid $150,000 a
year for this service. The families were
ignorant of this trading in their beloveds’ body parts. Whaley was offended.
Then, Office morale was low.
The new Chief’s bias in favor of law enforcement was part of the problem.
Favoritism infected hiring decisions. Besides that, one Assistant Chief Medical
Examiner hadn’t passed the required proficiency exam despite multiple
tries. Whaley was asked to coach him,
but he still couldn’t pass it. Even
after the two-year provisional period, his failure was ignored by management.
Ten years in, Whaley was not happy any more. He complained about problems, but nothing got
fixed. He decided it was time to leave
the morgue, and he became a whistleblower.
He did not follow the approved path: filing an official
complaint with the Virginia
Internal Audit Department or via the employee hotline. He did not reach out to legislators, as some
do. Instead, on March 31, 2016, he
posted a 20-minute video
on YouTube revealing extensive corruption in the Office of Medical
Examiner. That got him a paid suspension
while the Office investigated.
Technology has changed whistleblowing. In 1969 Daniel Ellsberg spent
nights at RAND Corporation Xeroxing the 7,000-page Pentagon Papers. He stuffed copies in his briefcase and snuck
them out past the night guard. He shared
excerpts with trusted colleagues until the New York Times agreed to publish
them in 1971.
Wikileaks
started up in 2006 making purloined documents available for public
inspection. The 10 million released so
far include some 750,000 government documents provided by Chelsea Manning in
2010. Edward
Snowden lifted about 1.5 million files from the NSA and in 2013 delivered
maybe 300,000 to journalists from various media outlets.
In addition to greater ease in disclosing vast quantities of
evidence, the number of whistleblowers has grown and seems likely to grow more
in the future. Navex Global, a hotline
management company, reported that the rate of corporate whistleblowing
increased 56% from 2010 to 2016.
Finally, technology has spawned new ways to publicize our
disclosures. There are blogs, like this
one, obviously. Daniel
Binswanger took the interesting step of posting his documents to docdroid.
Pages of uncertain provenance by or about whistleblowers pop up on
Facebook[1]. Some, like Joel
Clement, use Linkedin
to magnify their voice. Twitter is rich
with #whistleblower
messages. Now comes Kevin Whaley with
his YouTube video.
Figuring what is true in the stories of whistleblowers and their
tormentors is always difficult. Truth
may come out after documents are challenged and defended, stories are challenged,
and experts evaluate claims by both sides. Absent those opportunities, we are
stuck. It is nearly impossible to fairly
assess documents thrown to the wind. The
few documents in cases like Whaley’s can mislead us. And even more would the thousands or millions
of pages that new modes of disclosure accommodate.
Whaley said his group was paid $6,250 per brain by NIMH, but
no. That
amount was actually paid each month.
It turned out that the employee who failed the proficiency tests had
been with the Office less than two years.
In any case, the Office
can extend the grace period beyond two years if the employee is performing
well. Two independent groups – the National
Association of Medical Examiners and the Office’s internal
audit office – decided that Whaley’s complaints were unfounded. Which doesn’t mean he should not have raised
them.
Navex Global calculated that about 1.4% of its client
companies’ employees[2]
reported wrongdoing through its systems in 2016. If the U.S. workforce is
typical, that works out to about 2 million whistleblower calls a year. Forty percent of the reports were found to be
substantiated, meaning that the companies might have done something to fix the
reported problems. That leaves 1 million
unhappy whistleblowers in the U.S. One
million people each year who might be inclined to air the company linen
someplace on the internet.
Add to them millions who have suffered sexual abuse and
harassment. And millions more who are harmed
by racial discrimination. The river of potential
personal testimonies swells.
We whistleblower believe in transparency. We defend exposures of wrongdoing, and we fight
against attempts to conceal misdeeds. When torrents of honest revelations mix
with mistaken understandings and fake news, we may move further from the truth,
not closer.
Ta-Nehisi Coates writes[3]
of America’s deep rooted racism. It has thrived
through civil war, reconstruction, the civil rights movement, legal reforms, a
black president, Black Lives Matter, and occasional good will. The problem
might have no solution. America’s racial
future might be bound in tragedy. He
finds no reason to suppose it should end well.
In a similar vein, misdeeds disclosed by whistleblowers are endemic
to organizational life[4]. There’s
no reason our swelling struggle against that intractable force should move us
closer to justice. We whistleblowers act
as we believe appropriate with the resources at hand. At best, we can hope to achieve our small and
local successes.
Coates concludes, “And I don’t ever want to forget that
resistance must be its own reward, since resistance, at least within the life
span of the resistors, almost always fails.[5]”
[1]
Among the apparently innocent: Lincoln
County Whistleblower. Possibly less
reliable is Karen
Hudes Whistleblower whose case against the World Bank is pushed by rt.com
among others. RT is, of course, one of
Russia’s channels
of disinformation. Ms.
Hudes also maintains a robust website
about her struggle with the World Bank.
[2]
2,382 companies representing about 38.5 million worldwide employees (82% of
reports were in North America).
[3]
Coates, Ta-Nehisi. We Were Eight Years in Power: an American
Tragedy. New York: One
world. 2017.
[4] Alford, C. Fred. Whistleblowers: Broken Lives and
Organizational Power.
Ithaca, NY: Cornell University. 2001
[5]
Coates 289.
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