When We Lose (Part 3) ­– Perfect vs. Good-Enough

When We Lose (Part 3) ­– Perfect vs. Good-Enough

A friend worked in high tech until an acquisition helped him bail out.  Now he toils in metaphysics.  Struggling to define what we really know, he has settled on references.  Rather than knowing the cup before us, he figures, we perceive features that have meaning only in reference to past perceptions.  Our window of current experience keeps moving with new perceptions, so the references keep changing.  As a result, perfect knowledge is unstable if not impossible.

Periodically I encourage him to go easy and accept good-enough.  The cup now is similar enough to the cup an hour ago.  They really are the same cup.  Have some faith, I urge him.

Not so much a battle between the forces of good and evil, whistleblowing is a contest between perfect and good-enough.

Wrongdoers are forever claiming that their behavior is good-enough.  Approaching his trial, Jeffrey Skilling, one of the worst, asserted in his innocence as CEO of by-then-defunct Enron.  But he was convicted anyway.

Davita, Inc. is another interesting example.  In 2014 Davita agreed to pay $389 million to settle kickback allegations without admitting guilt.  In 2015 it agreed to pay $495 million to settle claims it only partially dispensed medications charged to the government.  Again it admitted no guilt.  Now in 2017, it agreed to pay $64 million to end another whistleblower suit.  Without admitting to doing wrong it bragged, “We take full ownership and continue to embrace transparency and rigorous compliance.”

When I revealed HomeFirst broke a California licensing law, CEO Niklaus defended the behavior.  Strict enforcement could close shelters across the State and put more homeless on the streets, she said.  The State inspectors agreed to delay action against the company so that it could come up with a fix.  HomeFirst was, in its eyes, good-enough.

Whistleblowers look harshly on deviations from perfect.  This can lead to complaints companies insist do not tarnish their good-enough status.

When HomeFirst cut the number of beds in its youth shelter from 10 to 8 in violation of a California loan requirement, Niklaus didn’t think it was a big deal.  I blew a whistle on that.  I also blew a whistle when kitchen workers lacked the required State-issued food safety cards.  The cards could be earned after passing a quick test and paying the $10 fee.  Probably not a huge infraction, really.

I join others who disclose misdeeds that some might think ridiculous.  Joel Allen complained the Philadelphia police didn’t exercise its horses enough.  Two Valley Mills (TX) employees accused the city manager of taking their deer feeders.  Autopsy manager Kevin Gerity said his boss mishandled a bullet fragment.  A Florida police officer attending his son’s Little League game while on duty was something Travis Harper could not accept.  Each was punished.

Our complaints may seem petty to some, but not to us.  The violations often fit patterns of misconduct.  My food safety complaint, on the day I was fired, came after complaints about nine other HomeFirst matters.

Minor complaints could involve simple misunderstandings.  You wonder why we don’t just sit down and talk them over.  Then the table turns.  The organization dumps its stored complaints against the employee to justify disciplinary action.  They, too, can be petty.

An Iowa state agency said whistleblower Susan Ackerman put incorrect information on an insurance application.  The City of Charlotte didn’t like Crystal Eschert’s Facebook post.  Petersburg (VA) Derrick Greer police officer ate a piece of candy he picked off the floor at a crime scene.  Patrick Leonard cursed while working for the City of Bayonne (NJ).  Troy Thompson ate a past-expiration sandwich from the VA kitchen instead of throwing it out. 

Sometimes both sides exchange petty complaints.  Juana Walsh worked at a senior living center in Woodstock (IL).  During one shift a male patient seemed confused.  He told Walsh he was afraid of a nursing assistant in the facility.  The assistant had told the patient to stop bothering him.  Then he was rough putting the man’s head on a pillow.  Walsh wrote up the incident and gave her report to the patient’s brother.  Her boss was upset when she learned about Walsh’s communication.  She fired Walsh for sharing patient information and stealing pencil and paper for her report.

Organizations and individuals are always violating something or another.  They are good-enough until they no longer are.  Rather than reasoned, the distinction is, often as not, emotional.  Morality and ethics have little to do with it.

The whistleblower’s legal case is based on a perceived violation that is properly disclosed.  Whistleblower protection laws demand attention to those specifics and don’t care about the employer's pervasive bad behavior.  Once the disclosure is established, the employer seeks to show she was not good-enough, regardless of her disclosures.  Its petty complaints help that proof.  Then other reasons follow: the usual insubordination, poor performance, and didn’t-get-along charges.

We trust authorities – California’s Labor Commissioner, for me – to sift facts from false claims and get to the real truth.  Their lack of expertise in all laws related to all complaints forces them to be satisfied with a good-enough understanding.  We walk into our whistleblowing hoping for perfection, but we leave dissatisfied.

Big-time players expose extraordinary issues that point to the core problem: the wrongdoer is just no good.  The rest of us are bound to narrow rules and seldom break free.  The organization is judged good-enough, and we are not.

When We Lose (Part 2)

When We Lose (Part 2)

My whistleblowing began in July 2013 when I disclosed government overbilling by HomeFirst Services of Santa Clara County.  After more disclosures, I was fired in June 2014.  My project ended in November 2017 when the State of California decided I was not a whistleblower at all.

When big-time players are denounced as not really whistleblowers, we know better.  Some called Edward Snowden nothing more than a traitor, but that was silly.  The same goes for calling Chelsea Manning just a traitor.  When little guys like me are denied the whistleblower title, it’s harder for others to judge.

California’s Labor Commissioner decides against most people who complain they were fired because they disclosed wrongdoing.  My public records request for copies of the 158 determination letters issued in 2015 yielded 100 actual letters.  Of those, 80 favored the employers.

From this lot, some arguments siding with employers seem stretched.  For example, letters written to five fired welders[1] at Newton, Inc. (dba Newtron Electric) acknowledged safety issues they raised.  The company was not prepared for the welders it hired, the Commissioner allowed.  There wasn’t enough safety equipment.  Welding hoods were not fitted.  Their foreman didn’t know much about welding.  There were problems with scaffold adjustments; on-site welding procedures were missing; and inappropriate staff were hired for electrical welding.  The employees raised concerns to management.  OSHA complaints were made, but ineffectively.

The State felt Newton knew about the problems and tried to fix them.  Surely it wasn’t in Newton’s interest to fire welders without good reason, it presumed.  Most likely Newton had fired them for poor performance, as Newton asserted.  Maybe the logic made sense to some.

Mostly, though, the determination letters present plausible explanations supporting the employers.  My letter did that pretty effectively: I was rude and could not or would not do my job.  True or not.  Raymond Gomez’s hours were cut not because he complained about being short-paid but because of a reorganization.  Marvin Gilbert was not really fired by his security company employer because he called the fire department about a possible violation.  He was fired at the request of the security company’s client who didn’t appreciate the call.

When a decision is made against us, our whistleblower status is thrown into doubt.  The Labor Commissioner’s office determined I wasn’t one because I lacked a good faith belief that I was disclosing violations.  Wisconsin’s Supreme Court ruled that Joell Schigur was no whistleblower since her bosses knew about the potential violation.  A jury decided that Jason Blasdell, a former SpaceX employee, never had any reasonably-based suspicion that SpaceX violated a law.  The State Bar of California won over its former executive director Joe Dunn.  He failed to specify which laws had been violated, so he was never a whistleblower, either.  Natasha Henderson’s disclosure of suspected corruption by the Flint (MI) mayor didn’t make her a whistleblower because she was acting as a city employee.  Schigur was demoted, and the other three were fired.

We can spend years on our whistleblower projects.  They come to define a big chunk of our lives.  Then it ends not just in defeat but in denial that we ever were what we supposed.

After the first few months following my termination, I did not talk much about my whistleblowing.  Except for family, most people who remembered my claim at all probably figured I had moved on.  They were not aware how stuck on it I was.  I was embarrassed by my obsession.

The violations we disclose are often very technical.  Only someone with the right background and access to relevant documents can figure if we are correct in our claims.  It’s even more difficult for others to evaluate why we were fired or demoted.  They rely on authorities to investigate and decide.  But authorities rule against most of us.  Then, on what basis can we still claim our allegations were true and we were retaliated against?  On what basis can we claim we were whistleblowers at all?

At least publicly, we must eventually admit our project is ended.  Our dream of a whistleblower’s victory is dead.  We follow a different grieving course from those who grieve the death of a loved one.  Our loss is not as great; that is clear.  Our time of denial, anger, and bargaining is long past.  After investing years into our project, deflation and maybe depression may follow.  But acceptance is difficult, at least for me now.

I can accept that my whistleblower complaint is dead.  There’s no forum where I can press it further.  Accepting the world revealed by my project, though, I cannot accept.  Not that nonprofits generally depend on deceit and shading the facts of their performance.  Not that government agencies chartered with managing nonprofit contracts willfully abandon their responsibilities.  Not that we are unable to rely on auditors and oversight agencies to find and correct misbehavior.  Not that the premise of social cooperation and support falls so far short.

Some big-name whistleblowers persist.  They do not accept.  They call out continuing wrongs.  People like Daniel Ellsberg, Edward Snowden, and Chelsea Manning earned a platform, and they use it.  Small-time folks like me and millions of others have no such platform.  Each time we object, we start again from the beginning.

Let us do that.

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[1] Joest Camacho, Curt Hawley, Charles Howell, Richard TenEyck, and Michael Viscardi

When We Lose (Part 1)

When We Lose (Part 1)

We whistleblowers always believe we have a case.  We think we will win. But we seldom succeed.

In 2014 California’s Department of Industrial Relations (DIR) received 1,290 whistleblower complaints, including mine.  It decided that only 47 complaints from 2014 and prior years were valid.  The vast majority of complaints were rejected at once.  Of those that made it as far as getting a determination letter, only 21% were decided for the employee.  In 2015, the most recent year reported, results were even more discouraging: 1,696 complaints, 27 valid cases, and 17% of determinations in favor of employees.

Despite history most whistleblowers expect they will be different.  We think we have something that others didn’t.  Some egregious wrong outed, or serial wrongs in HomeFirst’s case.  Some special evidence, like the emails I presented.  Still we routinely lose.

I lost.  The determination letter I received last week informed me I had failed to provide sufficient evidence to refute HomeFirst’s contention they had good reason to fire me.

DIR’s conclusion drew heavily on HomeFirst’s claims from three years earlier.  I had not got on well with CEO Jenny Niklaus for more than a year before I was fired, Joan Healy wrote from the Labor Commissioner’s Office.  Beginning in October 2013 my relations with Niklaus and the Board deteriorated quickly.  The violations I cited had existed for years.  I had lived with them until my relationship with Niklaus fell apart.  When I identified compliance violations, I failed to offer solutions, as was my responsibility.  If a solution emerged, I still complained.  Most of my complaints were unfounded.  I wasn’t a whistleblower because I believed there were violations but because I refused to act in the company’s interest.  Healy used HomeFirst’s phrasing: I “could not or would not” do my job.

In September 2016, DIR staff had recommended finding in my favor.  Healy reviewed the draft determination for 14 months. Still her letter contained startling factual mistakes.   

Some were silly: she wrote that I chaired the Audit Committee.  Everyone else knew that was untrue.  The California Nonprofit Integrity Act prohibits staff from being on audit committees.

Some mistakes were substantial.  She wrote that the violations I alleged had been evident for years.  In fact, three[1] arose for the first time during the few months before I was fired.  Two[2] had occurred earlier but were detected recently, and three possible problems[3] had breached our awareness only recently.  She said the violations were all within my area of responsibility.  In fact, Niklaus and her Chief Program Officer were directly responsible for most[4] of them.  Healy wrote that I did not offer solutions when I called out violations although I recommended corrective actions with each internal disclosure.  Just not actions Niklaus wanted to hear.

Some mixed silly and substantial.  Healy wrote that I continued to complain about the County overbilling even though HomeFirst and the County had arrived at an amicable solution.  In fact, no solution had been found before I was fired in June 2014.  By March 2015 the County decided that HomeFirst financial position was so terrible it could not immediately repay the overbilled amount.  In June 2017, HomeFirst was still trying to wriggle out of any repayment.

Many incidents are debatable nearly 4 years after they occurred.  Did I tell Board member “cash forecasts” were a waste of time?  Or did I warn them a particular 12-month forecast would be a waste of time because the Chief Development and Chief Program officers refused to cooperate?  Did my relations with Niklaus and the Board deteriorate quickly after July 2013?  Or did they deteriorate gradually due to my repeated comments about compliance violations and HomeFirst’s weakening financial position?

Debatable, too, is her legal argument.  Was my belief in the many violations reasonable enough to satisfy California’s whistleblower protection law?  Or did I need, as Healy seems to imply, a good faith belief in the organization, too?

Most painful for me, Healy completely ignored my email evidence.   I thought they made clear Niklaus and Board decided to fire me in direct response to my admitting I blew the whistle on two issues.  She didn’t explain why she didn’t consider them.  Whether that was due to incompetence or conscious decision, I will never know.  There is no chance to challenge their exclusion.

The California’s whistleblower protection process offers no opportunity to cross-examine witnesses or even to know who they are.  It doesn’t permit any examination of the retaliator’s evidence or a chance to challenge that evidence.  Healy’s conclusions are well beyond discussion.

In June 2017 California Labor Code 98.7 was amended from the 2013 version that applied when I filed my complaint.  The old law permitted complainants like me to appeal determinations.  The DIR seldom changed its mind, but reversals occurred on occasion.  Under the new law, Healy’s decision is final.  There is no appeal.  Regardless of factual errors.  Regardless of injustice or illegality.

Healy assured me that I could still sue HomeFirst.  Given my unsuccessful first try with an attorney, I can’t imagine a second try would work out better, especially with my ugly determination letter in hand.

It doesn’t feel fair.  I find that I am no exception to the norm for whistleblowers.  I am not cleverer than the others.  Perhaps I’m demonstrably dumber than most.  My adventure cost me $8,000, and I refused a $45,000 offer.  HomeFirst and those who joined in firing me or in watching it happen, they all roll happily along.  A few are relieved that it’s ended, but most don’t care at all.

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[1] EHAP loan, master leasing, and bid collusion.

[2] County overbilling and food handler cards

[3] Licensing, payroll taxes, and minimum wages.

[4] Licensing, EHAP loan, master leasing, food handler cards, and bid collusion