Adventures of a Small-Time Whistleblower: 2018

Sunday, December 16, 2018

The Whistleblower Identity

I think this is the way it worked with me: I found a problem while doing my job, and my boss got upset. That irked me. Then I raised another issue which had been around for a while and I knew would set her off. I took a moral stance and got blown back. I decided I was, and had to be, a whistleblower. It ended badly for me.

For a long time after I made my first disclosure about HomeFirst Services at the end of 2013, I thought of myself as a whistleblower. It was part of my identity. It explained why I had been fired.

Erik Erikson introduced the concept of identity in 1950, and public interest grew quickly. Erikson, who trained under Anna Freud, applied it to a stage of youthful psychological development. He described a process of integrating roles and skills with an eye toward how one will perceived as an adult – its social dimension. Identity, he wrote, provides a sense of continuity and sameness – its internal dimension.

The concept evolved. Recently, Kwame Anthony Appiah offered a new formulation. Identity comes with labels, he writes, and ideas about why and to whom they should apply. It shapes our thoughts about how we should behave and how others should treat us. Whether we have a right to claim an identity and to receive particular treatment may be contested by others.

The whistleblower identity is attractive to some. It helps justify our actions after we defy expectations of our employee identity. It seems to promise protection, even if the promise is eventually broken. But its contestable nature is key to the organization’s defense after it retaliates against us[1]. Despite my eight allegations of HomeFirst violations, my retaliation complaint, and my 150+ page rebuttal to HomeFirst’s defense, the State of California still determined I was no whistleblower. We had different understandings.

Some balk at the idea of being a whistleblower. They say they were just doing their jobs. That was Adam Wapniak, an audit officer in New York City’s Administration for Children’s Services, when he called out poor payment practices and other problems. That was Cynthia Cooper before she leveraged her WorldCom whistleblowing into a speaking career.

Sometimes the identity is assigned for the simplest things. Terry Chapman and Guillermo Toledo, who worked with the Kern (CA) High School District PE program, spoke up at a Board meeting. They were promptly labelled whistleblowers by a local news station.

Multiple identities can coexist in a single individual. They do in Appiah who can be read as Ghanaian, British, or American. They can intersect: a black man’s expectations differ from those of a Christian-black-trans, for example. Because of this fluidity, democratic societies have fractured into ever narrower identities, according to Francis Fukuyama. Each identity demands recognition and a proper measure of respect, he says.

Terry Albury’s double identity as an FBI agent with Ethiopian origins created a problem when his office started going after Somalis. He added whistleblower to his identities and was canned. Jennifer Denk was an employee of PharMerica, but the oath she swore when she graduated from pharmacy school led her to file an FCA suit against her employer. The suit succeeded although PharMerica denied doing anything wrong. Siobhan O’Connor was also torn: she cares for her boss Bishop Malone, who allowed sexual abusive priests to stay in ministry, but she is a faithful Catholic who felt God called her to leak documents about Malone.

Identities can emerge or recede over time. I did not always see myself as a whistleblower. I didn’t in 1992 at MAI Systems or at Catholic Charities in 2005 when I witnessed violations but stayed silent. I became one only in 2013.

I came to see myself as a “whistleblower” at HomeFirst, but before that I was a “highly valued member of the team.” I doubted, though, how well I was valued. Some of my professional opinions didn’t seem respected at all. I didn’t like the way I was treated. That valued employee identity wasn’t working for me.

Groups often don’t get the recognition they want. Then they organize; they take action. One result, Amy Chau writes, has been identity politics, which became a hot topic in the context of Donald Trump’s election. In the lead up to 2016, identity politics was a problem the Democratic Party would have to overcome or recover from. It’s safe to say that whether Democrats focus on it or not, identity politics will be vexing for years.

Whistleblowers, though, don’t organize and are weaker as a result. The National Whistleblower Center aims to help whistleblowers, but, resources being limited, it helps only bigger-time guys than me. Same thing for Government Accountability Project. But combining our efforts as whistleblowers – or even consoling each other – is difficult because we are constrained by confidentiality requirements and the threat of lawsuits from our (former) employers.

The whistleblower identity can be dysfunctional. It can get us into trouble without solving anything. Still we do it.

In Dangerous Minds Ronald Beiner describes the threat that ideas of Nietzsche and Heidegger pose to liberal society. They helped fuel fascism on the right and left, white supremacists, and other poisons. Nietzsche’s übermench and those privileged with access to Heidegger’s ineffable Being may face struggle, danger and death, but that’s the source of their emotional appeal, Beiner (citing George Orwell) says.

We are challenged to be sure that our confidence in our special causes is not another dangerous idea. It would be nice to know that we really are attracted to do good rather than engage in struggle, danger, and the risk of (career) death.

At the end of our project, when we view it all from a distance, our efforts can appear foolish. The idea that we have a moral obligation to blow the whistle can seem silly. Maybe it’s better for us, our families, and society if we just walk away from the jerks. That sounds a little like Howard Roark, but maybe.

[1] For example: Terry Albury, Eric Borcik, Martin Desmond, James Friedlander, Paul Somers, and Reality Winner. And famously Edward Snowden and Chelsea Manning. The State of California determined that I, too, was not a whistleblower in good faith.

Thursday, November 29, 2018

Whistleblowers and Victims

Whistleblowers occupy a curious area of the moral landscape. They are renegades who cooperate with authorities. They are ethical purists who betray their loyalties to employer and co-workers. They are heroes (villains to some) and, usually, victims. They are Davids who are smacked down by Goliaths.

In The Rise of Victimhood Culture by Bradley Campbell and Jason Manning, moral culture is defined by the grievances we have, the ways we handle them, and the languages and practices that go along with all that. In an honor culture, they write, reputation counts a lot. We act quickly, and physically if necessary, if our honor is insulted. Legal authority, if it exists, is not trusted or relevant. Think of the Hamilton-Burr duel: Burr felt insulted, and Hamilton felt forced to accept Burr’s challenge. Then Vice President Burr shot and killed the former Secretary of the Treasury.

As societies develop legal systems, dignity culture emerges. There, our virtue is internal and beyond real injury. Sticks and stones may break my bones, but words will never hurt me. People admire our ability to shrug off insults. If a matter is truly serious, we take it to a third party. American society in 1804 was in transition to a dignity culture, and Aaron Burr was called a murderer.

In the 1970s – around the time whistleblowing began – a new phenomenon surfaced. Microaggressions were minor insults that the dignity culture would ignore. But for those in what Campbell and Manning call the victimhood culture, if they recur often, they add up to a serious injury. The authors offer the example of clutching one’s purse when an African-American walks into an elevator. These insults can affect people at all levels of society. President Obama, addressing the death of Trayvon Martin, spoke of the sting he and other blacks know in such situations.

In this environment, even words can hurt. Like the tone deaf “All lives matter.” Victimhood culture combines the rash sensitivity to insult of honor culture with an extravagant reliance on dignity culture’s use of third parties to resolve differences. Negotiation is impossible.

The status of victims of offense – say, racial or ethnic minorities, women or LGBT individuals, the differently abled, or the poor – is raised on the way to punishing offenders. Privilege is deplored. Faced with two competing story lines, we believe those whom we find more virtuous – the victims. If oppressors claim to be victims, we insist we are the ones truly victimized. To suggest a victim may be partly at fault is tantamount to victim blaming.

As my whistleblowing failure drifts years into the past. I rethink the experience: I accomplished nothing, beyond getting fired. Maybe I had the narrative all wrong. Maybe I wasn’t the ethical purist, the heroic renegade. Perhaps instead, I played a different role: that of the victim.

Like those who complain about microaggressions, I called out violations that seemed trivial to many. The incident that launched me on being a whistleblower – a $130,000 overbilling by HomeFirst Services – was dismissed by the company, Santa Clara County, and the State of California. My first true whistleblowing action – about a licensing violation – led to a State monitoring visit, but that was about it. I offered many other complaints and thought them all valid, but they received no attention.

That happens to others, too. Dozens of whistleblowers called out unsafe conditions at the Manchester (NH) VA center, but an investigation decided their claims were unfounded. James DeNofrio, an administrative officer at a VA center in Pennsylvania, claimed his boss had dementia, but he performed normally in tests. Michael Gurrieri, an internal investigator with the San Diego (CA) school district, reported mishandling of sexual abuse claims and was fired. A victim like him, I tend to believe Gurrieri, but a jury and various authorities ruled his claims were unsupported.

If breaking the law is seen as minor and unworthy of response, what then of the retaliatory insults that lead to a forced resignation or termination? For us, eyes rolled in response to our suggestions, exclusion from meetings and important work, relegation to underequipped offices, and pictures of rats taped to our lockers add to a workplace that unfairly rejects us. We are penalized when denied raises and promotions. Instead, maybe these insults only prove our bosses and colleagues are jerks and we should get out of there.

Like players in the victimhood culture, whistleblowers rely on third parties to resolve our conflicts. Sometimes we use them extensively. To support of my allegations against HomeFirst, I made more than 200 complaints and follow-ups to 30 different federal, state and local agencies. That sort of excess can be necessary because each violation and retaliation complaint is handled separately and these agencies don’t act quickly. Still, it might demonstrate a freakish obsession.

As in victimhood culture, whistleblowers earn high status, justified or not. They are said to provide great value to society. They are courageous. They are heroes.

Victimhood culture can generate political success when masses of followers are moved to demand justice for the downtrodden – blacks, females, LGBT, and more. They can bring down those who mistreat minorities. Although based on arguably minor violations, they are often linked to atrocious acts: blacks killed by police officers and women raped by powerful men.

Whistleblowers, on the other hand, seldom lead anyone. Our charges are technical and involve confidential information. We appeal to reasoned analysis, not to emotions that inspire others to action. On the rare occasions when we spark political change – Edward Snowden’s disclosures, for example – interest soon passes.

The benefits of victimhood culture can be unclear to those who question whether microaggressions truly accumulate to serious harm. But Campbell and Manning claim the social damage is real. On college campuses, academic freedom and freedom of speech are threatened, they say. Greg Kukianoff and Jonathan Haidt argue similarly in The Coddling of the American Mind.

The revelation of hidden misdeeds surely benefits society. But it is not obvious that whistleblowing by employees produces benefits that outweigh its costs to individuals who make disclosures and the billions of dollars spent annually to maintain the whistleblowing system. The process has failed.

After fifty years of whistleblowing, the time may have come for a new approach. One in which employees do not invent loyalty to an organization and stay to fix its failings. If they remain in an organization after seeing misbehavior, they should recognize their selfish reasons for staying. Policies and laws that leave them open to retaliation should surprise no one.

A better strategy might be: gather the information you need, leave, disclose the misdeeds if you like, and get on with life in a healthier space.

Tuesday, October 30, 2018

When Whistleblowing Is Foolish

We like to think our whistleblowing is heroic. We stand by our consciences. Setting selfish interests aside, we act to benefit the community. But lots of times, especially in retrospect, it’s clear we are simply fools, going about it as we do.

Terry Albury was born in Northern California in 1979. While studying at Berea College in Kentucky, he interned with the FBI. After graduation he joined the FBI, becoming an agent in 2005. From 2009 to 2010, he served in Iraq with duties that included interviewing Iraqi detainees. He returned to the US in 2012 and was stationed in the Minneapolis field office where he served in an counter-terrorism squad.

Albury was a straight arrow. Perhaps because his mother was a political refugee from Ethiopia, he had a well-developed sense of social justice. He was a Big Brother. At the time of his arrest he was happily married. His wife, whose parents were Cambodian refugees, thought of following him into law enforcement but put her career on hold to raise their two children. He won many awards from the FBI. At his sentencing, his attorneys described him as a consummate professional.

Life can be difficult for people of color in America. Minnesota ranks 8^th among states in the percentage of whites in its population. The FBI has had issues with diversity, and Albury was the only black in its Minnesota office. He complained of racial jokes and hazing. He felt alienated and isolated.

Between February 2016 and January 2017 Albury collected information about how the FBI recruited informants and identified potential extremists. The tactics reeked of profiling and intimidating minority communities, he thought. He could have filed complaints with the FBI, but he didn’t believe that would do any good. So he leaked the documents to a journalist at The Intercept, where it formed the basis for a series on FBI practices. He became a whistleblower.

Albury could have approached the problem differently. He might have decided that he was just stressed and the problem wasn’t that big a deal after all. And not one that he was going to change any time soon. He could have complained internally if it made him feel any better.

He might have held on for three years to get his retirement, and then complained to The Intercept or anyone else who cared. Or he could have helped the people the FBI mistreated. That might have been good.

Instead he got sucked into the whistleblower role. Maybe he was going to be the next Daniel Ellsberg or Edward Snowden. Unfortunately he played the fool, setting the stage for Reality Winner.

Similar to Snowden, Winner was an intelligence contractor who grabbed NSA information. Hers was a May 5, 2017 report on Russian cyberattacks. Four days later she decided the government was going to conceal the information. She mailed a copy to The Intercept, which then called the government about its story. The FBI learned about the call on June 1, and they arrested Winner on June 3. Her big disclosure was soon common knowledge from a variety of sources. Winner was sentenced to 5 years in prison. Burned by The Intercept. For nothing.

Albury took more care than Winner would, he sent his 25+ files to The Intercept in encrypted emails. He changed file formats to avoid detection. But The Intercept burned him too. They sent a FOIA request to the FBI about two of the secret documents. The agency was surprised the requester knew the name of a secret document. It checked who had accessed the files. A few did, but Albury was the only one who copied portions of the files into another document. Office cameras caught Albury taking photos of his computer screen while he was accessing other files. A January 2018 search warrant led to the discovery of more classified files at his home. In April he agreed to a guilty plea, and he was sentenced to four years in prison.

For some, blowing the whistle is quite rational. It’s like a business decision to get an expected return. Maybe their employer cheated them out of wages or illegally discriminated against them, and they want what is due to them. Or they file an FCA lawsuit hoping to recover a reward.

The rest of us are “ethical” whistleblowers, driven by emotions and moral judgment. The outcome from our whistleblowing will determine how foolish we were in our projects.

I thought I was justified in my complaints about the behavior of HomeFirst Services of Santa Clara County. They were all ignored or considered immaterial. After I was fired, the State of California determined that I was no whistleblower at all and did not deserve the protection I sought. But I was close enough to retirement to manage, and I stopped legal action before it cost me too much. I was just a little foolish.

Albury and Winner proved to be quite foolish whistleblowers. They had a lot at stake because they were both fairly young and Albury had a family to support. They went up against very powerful organizations that have a sympathetic audience in today’s America. They used a media outlet that would inadvertently reveal their identities. Their disclosures were not big news to anyone. Nor did they disclose striking moral or legal violations. Although they were both sentenced to years in prison and ruined lives, they accomplished nothing.

Even if other options are available, we are attracted to becoming whistleblowers. We are pushed by some dissatisfaction. Maybe some anger. Possibly a sense that the situation is unjust. We are pulled along through the dangers by the myth of the idolized whistleblower. If we are lucky, we stop short of being too foolish.

Tuesday, October 9, 2018

Not Becoming a Whistleblower (Part 2)

We love an ideal form[1] of whistleblowing, not the reality. According that ideal, those who blow the whistle are moral actors. We all benefit from their acts because fraud and other lawless behavior are reduced. Whistleblowers are protected against retaliation by their employers. Offending organizations are punished. The process of fair investigation, analysis, and conclusion proceeds promptly and reasonably.

A few writers, including C. Fred Alford (2002), caution that this ideal is far from realistic. Alford argued that organizations are predatory and will always make their whistleblowers’ lives miserable. And whistleblowers are not the moral beacons they pretend, he said. Moreover, whistleblowers will pay a high price, sometimes sacrificing their lives to save ours.

The ideal, even if false, serves a socially useful purpose. It gets people to speak up. And despite all warnings, the gap between ideal and real may be narrow enough to work for society.

Some folks do make their disclosures on moral grounds even if Alford calls them moral narcissists. The public sometimes gains from the correction of bad behavior. Small changes, at least, followed Edward Snowden’s massive disclosures, for example. Even if they are not always protected, some are fairly compensated for retaliation they suffer. Take Sanford Wadler, former General Counsel at Bio-Rad Industries. A California jury awarded him nearly $15 million in 2017 because he was fired for raising concerns over violations of federal laws.

After whistleblowing started up five decades ago, we came to recognize that all the parties – discloser, organization, and legal enforcement – play in a more complicated setting than the ideal assumes. We operate with opposing values, understandings of fact and legal precedent, emotions, and authorities. A fair conclusion may be displaced by one that is expedient or responds to influence and bias. In this environment, whistleblowing may not be the right approach for many who observe wrongdoing.

A whistleblower and others helped push Theranos toward dissolution after years of fraud by the company’s CEO Christine Holmes and her accomplices. In John Carreyrou’s telling, Theranos’ collapse resulted largely from the most basic of business problems: its blood testing device didn’t work. As at Enron, fraud entered the picture when management tried to keep the struggling operation from sinking. Holmes, looking sharp in her Steve Jobs black mock turtleneck, pitched her deception to the U.S. Army, Walgreens, Safeway, and the FDA. She was impressive, but she flopped.

Tyler Shultz was Theranos’ traditional whistleblower. Shultz suspected the company was misrepresenting lab results. He took his concern to Holmes who brushed him off. He spoke to his grandfather, George Shultz, who was a Theranos board member and also a former Secretary of State, former Treasury Secretary, and former Labor Secretary. The elder Shultz assured his grandson he was mistaken. Tyler eventually reported his suspicions to the New York State Department of Health. He resigned. Theranos unleashed powerhouse attorney David Boies to sue him.

The company had other employees – 10 notable ones by Carreyrou’s count – who responded to the obvious craziness at Theranos by quitting. They withdrew their technical support for its fraud and didn’t get sued. They acted ethically without becoming whistleblowers.

Jack Paulson at Google is another corporate dissident. Google is reported to be developing a censored search machine for the Chinese market. Although it complied with Chinese law, the project offended Paulson. So he quit rather than support behavior that offended his ethics.

Another approach: on September 5, 2018 the New York Times published an anonymous op-ed by a senior official in the Trump administration. The author claimed to be part of an internal group that keeps Trump from implementing dangerous parts of his agenda. The group’s members believe they are acting nobly, the author says. They are protecting America’s democratic institutions.

Our traditional view of whistleblowing has always been wrong. The gap between ideal and reality had seemed small enough not to matter. When the gap widened, the system was patched. Whistleblower protection laws were introduced to cover new employers. Systems were developed to collect complaints anonymously. Governing bodies called for new reports. Rewards were offered. More attorneys were needed. Organizations introduced ways and still more ways to improve whistleblowing. I even offered my own suggestions.

These are fixes made chiefly by legislators and senior managers of organizations. The examples of Theranos employees, Paulson, and the anonymous op-ed writer show individuals acting on their own. They resist misbehaving organizations as people did before our whistleblowing complex was constructed.

But merely quitting, as Theranos employees did, doesn’t seem strenuous enough to make a difference in every case. If Snowden had simply quit his Booz Allen Hamilton job in protest against NSA practices, government surveillance would have continued secretly and unchecked.

And wide-spread rebellion of the sort described by the NYT op-ed writer would lead to chaos. We could never trust anyone to do what they promise. The prospect of anarchy might make us yearn for Professor Bok’s faith in loyalty to the organization and one’s colleagues[2] even if we abandon our disclosures.

Whistleblowing didn’t work for me. I lost my job at HomeFirst Services and accomplished nothing. What else could I have done? Sabotage would have been easily detected and punished with a vengeance. Quitting is exactly what HomeFirst’s CEO wanted me to do. Quitting after I gathered documentation to prove the violations and performing my whistleblowing from outside was possible. But it would have meant giving up my salary earlier than I planned. Greed trips many whistleblowers.

The troubling gap between idealistic whistleblowing and reality may be unbridgeable. It’s nonsensical to expect that one person could defeat an organization representing hundreds or thousands of people. We may have to accept that the handling of our disclosures will always be flawed.

The ideal is so simple. But an array of clashing motives drive us. When we blow a whistle, we are certain we are right in our claims but also fearful we’ve got it wrong. We both understand and disdain those who do not support us. We want to win even though no win will satisfy us.

If we cannot handle these breaks from the ideal, we should probably not consider becoming whistleblowers. We should find an easier path.

[1] Cf. Appiah, Kwame Anthony. As If: Idealization and Ideals. Cambridge, Mass.: Harvard University Press. 2017.

Tuesday, October 2, 2018

Not Becoming a Whistleblower (Part 1)

According to accepted wisdom – at least among whistleblowers and our supporters – whistleblowing is important to society. We are vital to the public interest. We deserve respect. We are encouraged to brave the consequences and disclose wrongdoing. But what if all that is just wrong? How would we respond to misdeeds?

Whistleblowing is a relatively new phenomenon. Before the 1970s, little was written about it. The number of research papers mentioning the topic since 1920:

The percentage of books that mention it from 1920-2008 also took off after about 1975 (per Google Ngram):

Early on, whistleblowers were limited to current or past members of the wrongdoing organization who lack authority to correct the wrong[1]. This internal status distinguished them from muckraking journalists, like Ralph Nader, and other outsiders, like Daniel Ellsberg.

As insiders who rat on their employers and colleagues, whistleblowers have long been exposed to criticism for being disloyal. Theorists devised moral rules for whistleblowing. Professor Sissela Bok demanded that ethically correct disclosure must be in the public interest, expose a significant danger, and be likely to lead to a better situation[2].

Whistleblowing grew with the attention. More people reported wrongdoing: increasing from 8 per 1,000 employees in 2004 to 14 per 1,000 in 2017, according to NAVEX Global, a large provider of corporate hotlines. Qui tam suits under the False Claims Act increased from 30 in 1987 to 675 in 2017. In California, whistleblower complaints filed with the State increased from 88 in 2005 to 2,022 in 2017.

Seeing a social benefit in all this, legislators passed laws to protect whistleblowers. The Whistleblower Protection Act of 1988 initiated protection for federal employees. After the Enron and WorldCom scandals, Congress enacted the Sarbanes-Oxley Act of 2002 to address corporate fraud. Eventually all states offered some form of legal protection for whistleblowers.

Organizations formed to support the whistleblowing enterprise. The Government Accountability Project started in 1977. The National Whistleblower Center began in 1988.

Whistleblowers became iconic. Films about them won awards: On the Waterfront (1954), Serpico (1973), All the President’s Men (1976), Silkwood (1983), The Insider (1999), Erin Brockovich (2000), The Informant (2009), and Snowden (2016).

Then over the past twenty years, our understanding of what leads to ethical and unethical behavior shifted. Philosopher George Sher (2001) argued that our moral decisions were the result of our background and experiences[3]. Whether we are courageous whistleblowers or misbehaving organizational managers depends on the luck of our draw. We can even flip between the roles as we go through life.

Social scientists, including Dan Ariely (2012), Max Bazerman (2011), Jonathon Haidt (2001), Daniel Kahneman (2011), and Ann Tenbrunsel (2009), conducted research into moral decision-making. They found that each person’s choices, whether organizational wrongdoer and noble whistleblower, are more often the results of emotions and their immediate situations than reasoned analysis. Whistleblowers act like anyone else: they aim, consciously or not, to serve their own interests rather than the public’s.

While whistleblowing has continued to increase in some circles, in others it may be slowing. False Claims Act qui tam lawsuits have been basically flat since 2011. And in Santa Clara County (California) where I worked, complaints have declined 30% since 2011[4].

There may be good reason for whistleblowing to decline in the future, if not now. For example, the lack of effective protection from retaliation can discourage some from speaking up.

That protection comes from a patchwork of local, state and federal laws. Each state employs its own mix of common law and laws specific to certain industries and sectors. Burdens of proof, enforcement standards and remedies all vary, complicating anyone’s search for coverage. Perfecting a claim can be dicey. Some who make disclosures, like those in the intelligence community, receive no protection at all.

California promises protections in its robust Labor Code 1102.5, but over the past 10 years only 5% of retaliation complaints were found to have merit. And it takes 2-3 years on average for complainants to get their sorry news[5].

Employees can also be discouraged when their disclosures don’t lead to the correction of bad behavior or reasonable punishment of bad actors. Based on my investigations, I alleged several legal violations by HomeFirst Services of Santa Clara County. One was particularly telling: HomeFirst overbilled Santa Clara County by about $133,000 in 2010-2012. After I informed County officials informally in July 2013 about the accidental overbilling, they took no action. I filed a whistleblower complaint with the County on February 12, 2014. Follow-up communications with County and State officials led nowhere. The County decided my complaint was “not sustained” on March 3, 2015. Three years later the overpaid amount had not been recovered from HomeFirst, but the County said it still intended to get it back.

The treatment of my complaint, frustrating though it was, appears consistent with Santa Clara County practices. From January 2013 through October 2016, the County resolved 256 whistleblower complaints. Of those, just 14% were sustained wholly or partially.

Even when companies are caught, they seem to escape real punishment. In settlements of FCA lawsuits, they seldom admit guilt[6]. Instead their fines become just another cost of doing business. Or the real culprits manage to escape punishment, as in the case of Ben-Artzi v. Deutsche Bank. After Wells Fargo Bank was caught repeatedly, it launched an ad campaign to tout its recommitment to the customers it cheated. We can become cynical.

It’s painful to realize that after so many headaches we obviously achieved nothing. Even the successes of famous whistleblowers can be debated. Daniel Ellsberg released the Pentagon Papers only after years of public opposition to the war in Vietnam. Still, the war continued for another three years. By the time Sherron Watkins warned CEO Kenneth Lay about fraud at Enron in August 2001, the company’s stock had already dropped 30% from its March level[7] and its accounting frauds were multiplying to hide burgeoning debt. It probably would have crashed even without her famous disclosures.

Despite the failures and injustices, whistleblowing maintains its idealized form: a hero up stands up to bad actors and her courage benefits all of us. But the gap between this ideal and reality has widened[8].

[1] Near, Janet P., and Marcia P. Miceli. “Organizational Dissidence: The Case of Whistle-Blowing.” Journal of Business Ethics 4 (1985): 1-16

[2] Bok, Sissela. “Whistleblowing and Professional Responsibilities.” In Ethics Teaching in Higher Education. Daniel Callahan and Sissela Bok (eds.). New York and London: Plenum Press. 1980. 277-295. See also De George, Richard T. Business Ethics. 6^th edition. Upper Saddle River, NJ: Pearson Education. 2006. 307-313

[3] Cf. Very Bad Wizards, September 19, 2018

[4] See my summary of the County’s 2016 report here.

[5] In 2017, 39% of the determinations related to complaints filed in 2014 or earlier. Two determinations related to 2010 complaints. See also this.

[6] For example among recent cases, Health Management Associates (9/25/18), East Texas Medical Center Regional Health Services (8/27/18), Reliant Rehabilitation Holdings (8/23/18), Post Acute Medical (8/15/18), Royal Bank of Scotland (8/14/18), Richard A. Olsen (8/7/18), Grenada Lakes Medical Center (8/6/18), Prime Healthcare Services (8/3/18), William Beaumont Hospital (8/2/18), and Wells Fargo Bank (8/1/18)

[7] The S&P 500 was mostly unchanged over that period.

[8] Cf. Appiah, Kwame Anthony. As If: Idealization and Ideals. Cambridge, Mass.: Harvard University Press. 2017.

Tuesday, September 11, 2018

Catholic Whistleblowing (or Not) (Part 2)

Like many whistleblowers, Archbishop Carlo Maria Viganò is a complicated figure. In his August 22, 2018 letter he called one of the most admired people in the world, Pope Francis, complicit in concealing for years sexual abuses by one of the Church’s vilest characters, Cardinal Theodore McCarrick. Viganò also continued his screed against tolerance for homosexuality by and in the Church. That acceptance caused the scandal, he said, not clericalism, as Francis argued.

Responses to Viganò echo those HomeFirst Services of Santa Clara made against me when I alleged it violated laws. They recall what is said of most whistleblowers. The boss, Francis, blew off his charges. They were beneath comment. Viganò’s allegations were unsubstantiated and designed to undermine Francis’ authority. He’s not a good-faith whistleblower, critics say. He plays to the conservative wing of the Church that fights Francis’ policies. Viganò is impure himself. He tried to suppress a 2014 investigation into homosexual activity by a Minnesota archbishop who was later accused of covering up abuses. He has a history of dishonesty. What’s more, Viganò is a disgruntled employee: Francis kicked him out of the U.S. ambassador job for poor performance.

Like any whistleblower, Viganò is flawed. He is a bit repellent even if he is right to make his allegations.

More offensive, and less understandable to a whistleblower, are the thousands of priests who knew about sexual abuses in their ranks and did nothing. Or maybe they raised questions discretely and let them drop. Either way, they allowed heinous behavior to continue.

The recent Pennsylvania grand jury report made clear that many did know. It described expansive procedures the Church used in 6 Pennsylvania dioceses to conceal abuse by hundreds of priests. It documented what many long suspected.

The priest who first blew a whistle on McCarrick twenty years ago believes his abuse was known by many in the seminary that McCarrick headed. Nothing was done at the time. McCarrick’s behavior was commonly known for years after, he claims. Instead of punishing the abuser, they raised him to cardinal.

Unlike most whistleblowers, priests can’t lose their jobs for objecting. They can be ostracized, though, and relegated to less appealing jobs. That can be painful in an organization so fundamentally social.

For the same reason, parishioners rarely stand up to object. Naka Nathaniel told how he confronted his parish priest. During his homily the priest said the Church must change, and then he moved on to other things. Nathaniel rose beside his 9-year-old son and demanded to hear how it would change. We don’t know what price he will pay for creating a fuss.

In May I emailed the pastor of our Palo Alto parish about a homily by one of his priests. The guy had announced he was the “word of God” at church, teachers were the word of God at school, and parents were the word of God at home. I observed that predator priests say such things on their way to abusing children. My pastor said he’d correct the priest, but I later learned he dropped the matter.

After the Pennsylvania news, our local bishop Patrick McGrath sent out a letter. With other bishops, he asked for forgiveness for the abuse and cover-ups. He asked everyone to pray for the victims. Pretty lame, I thought.

Before a recent Mass celebrated by the “word of God” priest, it seemed to me he was just a little too friendly with a young boy. Especially in light of what happened in Pennsylvania. I emailed our new pastor, Fr. Stasys, about it, and we chatted after Mass on the next Sunday. He was attentive and concerned. He would discuss boundaries with the parish priests.

Then came Viganò’s revelations. I anticipated another letter from Bishop McGrath. What came was a description of all the good things the diocese has done to protect minors. It was mostly what the bishops had agreed to do in 1994. Nothing about people who were silently complicit in the abuses and protected abusers. Nothing about the Pope’s missing defense against the allegations by Viganò.

Responding to my email, Fr. Stasys said he can only do his best to protect the people in our parish. On Sunday a different priest did not address the issue directly. Instead he advised us to focus on faith, humility, and obedience. If we ask too many questions and don’t accept the answers, we lack faith, he warned. The next day Pope Francis said something similar. He recommended prayer and silence to combat scandal.

It does seem true that the Church has done a lot to stop abuse from happening. Here in California, priests and many other Church employees are State-mandated reporters. There is oversight and training. Reports of abuse seem to relate mostly to acts from years ago although victims of more recent attacks may still come forward. On the other hand, Church lawyers still work to block victims’ lawsuits by protecting statutes of limitations on reports of abuse.

If the Church deals honestly with its concealment of past sexual abuses, it may graduate to a more normally corrupt organization. Then we’ll see just the usual financial mischief.

But as long as the Church encourages silence and sees its sexual abuse scandal as an aberration in an essentially innocent organization[1], rather than part of a corrupt culture, whistleblowers may not emerge to disclose wrongs until they are too big for anyone to ignore.

[1] Cf. Snyder, Timothy. The Road to Unfreedom: Russia, Europe, America. New York: Tim Duggan Books. 2018