A New Whistleblowing – Kohn’s New Handbook

A New Whistleblowing – Kohn’s New Handbook

Stephen M. Kohn’s The New Whistleblower’s Handbook prescribes an ethics-free approach to whistleblowing.  He responds to a world much different from 35 years ago.  Ethics and morality, which were core to the older whistleblowing, are not inconsistent with his new approach.  They are just not that important.

Since whistleblowing became a phenomenon, the number of laws protecting whistleblowers has increased, and more are added each year.  There are now 55 federal laws, and most states have at least a couple.  Federal and local governments have ramped up payments to vendors, especially for health-related services[1], expanding opportunities for fraud. 

Kohn points to two other important factors that have changed the whistleblowing landscape.  First, anonymous reporting has become more common.  Anonymity is helpful because it can protect the whistleblower, at least for a while, from retaliation.  Second and Kohn’s favorite, reward laws allow disclosers a chance to share in fines and other recoveries from wrongdoers.

Early writers on whistleblowing focused on the ethical questions we should consider before making our disclosures.  That was proper, Sisella Bok[2] wrote, because we break our duty of loyalty to our employer and colleagues when we blow the whistle on them.  Despite our disloyalty, whistleblowing is morally permissible, Richard De George[3] wrote, if

1.       The firm will do serious harm to the public

2.       We first report to our immediate supervisor and

3.       If the supervisor fails to take effective action, we exhaust the internal reporting methods

Furthermore, whistleblowing is morally required if

4.       We have hard evidence that would convince a reasonable, impartial observer that our view of situation is correct

5.       We have good reason to believe that by going public the necessary changes will be made.  The chance of being successful is worth the risk taken by exposing the problem.

In contrast, Kohn’s thirty rules for good whistleblowing do not sound moral concerns.  They include

#3  Follow the Money (Use laws that pay rewards)

#4  Find the Best Federal Law (It will offer protection and rewards)

#6-12  Get Reward!

#15  Make Sure Disclosures Are Protected

#17  Beware of “Hotlines”

#18  Don’t Talk to Company Lawyers

#22  Delay Is Deadly

#23  Conduct Discovery

#26  Get Every Penny Deserved

#27  Make the Boss Pay Attorney Fees

Rule 30 states whistleblowing works.  As proof: from 1988 to 2016 the Department of Justice civil fraud division recovered $15.3 billion without the help of relators.  With their help, the DoJ recovered $37.7 billion.  The whistleblowers received $6.4 billion for their efforts.

But Kohn’s handbook describes a narrow patch of the whistleblower landscape.  During the past five years, the DoJ recovered an annual average of $3.3 billion on whistleblower complaints.  It also received just 693 new whistleblower suits a year.   That’s a miniscule portion of the million or more whistleblower complaints a year.

Kohn’s new world does not concern most whistleblowers.  It didn’t apply to me.  HomeFirst had no anonymous complaint reporting system.  Even if it had, my identity would have been discovered quickly enough.  Although the State did not reveal I had complained about its licensing violation, the CEO and Board chair figured that it was me. 

Most of the violations we disclose do not lend themselves to a calculation of rewards.  My whistleblower complaint listed eight HomeFirst violations.  None of them involved outright fraud.  The misdeeds were simply violations of laws and government agreements that did not provide rewards.  When government agencies waive the violation or fail to reclaim the ill-gotten funds, as Santa Clara County and HUD did with HomeFirst, there’s no hope for compensation.  But retaliation still occurs.

Even some famous whistleblowing falls outside Kohn’s territory.  No qui tam suit was available to Edward Snowden or Chelsea Manning.  And few of Politico’s top 10 whistleblowers could hope for rewards even under new laws. 

Kohn doesn’t discourage disclosures made for intrinsic or ethical reasons.  He just directs us to a more practical and self-aware way of whistleblowing.  When C. Frederick Alford[4] reported his interviews of whistleblowers, he warned us that we will probably not improve anything by our efforts.  Our suffering will probably be meaningless.  Rather than acting heroically, we are more often driven by moral narcissism[5].  Kohn offers an attorney’s counsel out of that despair.

But Kohn’s result may not inspire the general public.  Popular imagination is not excited by whistleblowers who are in it only for their own payoff.  Folks are fascinated by someone like Edward Snowden who acts to protect rights for all of us.  We are intrigued, if puzzled, by a person like Eric Ben-Artzi who won then turned down an $8.5 million award because he thought the wrong people were punished.  Kohn speaks to the potentially winning whistleblower, not to those who stand on principle or who chose to remain silent.

Early writers tested whistleblowing against a moral standard because they thought the act was inherently immoral.  A stain on our loyalty.  Employment-at-will laws and short tenures have reduced the expectation of loyalty, but still external measures of whistleblower sincerity seem necessary.  The idea of the public good is one test in laws.  Or, as Kohn recommends, a successful lawsuit based on solid evidence and an adroitly selected law.

Alternatively, we could admit that the violation we disclose is simply one wave on top of a choppy sea of misbehavior.  Like most, I blew the whistle because I was dissatisfied.  It’s perfectly reasonable to be unhappy with an employer that does lots of bad things.  It’s altogether appropriate to strike at that employer.

Employers like to dismiss whistleblowers as disgruntled employees.  The State determination letter in my case accepted that.  My relations with HomeFirst’s CEO and Board deteriorated, and they deserved to fire me, the State said.  But we are disgruntled.  That’s why we blow the whistle.

We can retrospectively justify our action in terms of external moral standards.  We can evaluate the action in terms of how effective it changed another’s behavior or secured a reward from some authority.  Still our action comes from within us.  It is ours, successful or not.

---

[1]Medicare/Medicaid fraud is a favorite target for False Claims Act suits.  Medicare/Medicaid costs increased from $61 billion in 1980 to $1.2 trillion in 2016.

[2] Bok, Sisella. “Whistleblowing and Professional Responsibility.” New York University Education Quarterly 11.4 (1980): 2-10

[3] De George, Richard T.  Business Ethics.  6^th edition.  Upper Saddle River, NJ: Pearson Education.  2006.  De George first published his text in 1982.

[4] Alford, C. Fred. Whistleblowers: Broken Lives and Organizational Power. Ithaca, NY: Cornell University. 2001

[5] Ibid 79