The Significance of Whistleblowing
In May 2015, Kevin
Davis was hired by Matagorda County
(Texas) to work on its road and bridge maintenance crew. After a while, he noticed that residents
would sometimes drop off scrap iron at his location. Then his boss Commissioner James Gibson or his
supervisor William Anders would tell him or a fellow worker to sell it to a local
scrap yard. With the proceeds from the
sales Gibson set up a Kitty to use as he chose.
In January 2018, Davis, who is African-American, had a car
accident that kept him from work. He
asked Gibson if he could use some of the Kitty to help him get by as he had
heard some white employees had done.
Gibson said no. This was not the
first time Davis experienced racial discrimination on the job. So he complained to the County HR department
about it.
HR found his allegation interesting and asked him to tell
them about the scrap operations. According
to his lawsuit, Davis started thinking the Kitty might not be quite legal. In February a Texas Ranger contacted
him. Davis wrote up a report on scrap
sales, and a day or so later the Ranger took possession of the Kitty.
After the Ranger’s visit, Davis heard Anders and a co-worker
refer to Davis as a “n…r.” Davis
complained to Gibson about the comment.
In the heated discussion that followed, Gibson accused him of telling
the Rangers about the Kitty and getting him in trouble. Three weeks later Gibson fired him,
supposedly for insubordination and poor job performance.
Davis appealed his termination, but the County ruled against
him. He had not made his complaint in
the proper manner, it decided. He wasn’t
really a whistleblower as far as Texas law was concerned. His several arguments with Gibson and his deteriorating
job performance gave the County good reason to fire Davis, it said. Last month he sued the County.
Davis’ case illustrates many elements typical of our small-time
whistleblowing.
First, there are the moral
issues. Davis was right: Gibson did violate the
law. But Davis was not pure. He was fine with the Kitty, which he might
have found suspicious if not clearly illegal, as long as he could share in its
benefits. He sued over the squirrely
Kitty, not over the more broadly offensive racial discrimination practiced at
the county.
Then, as white-collar crime goes, the Kitty was not so
egregious. An organization might even reward
an entrepreneurial manager like Gibson.
If the County had included scrap sales in its budgeting and the proceeds
were spent for legitimate purposes, then the whole thing might have been of no
consequence at all.
Second, as sometimes happens, Davis fell victim to legal technicalities. It’s clear that he satisfied the general
intent of whistleblower protection laws: he disclosed an illegal act to
authorities and wanted protection from retaliation for having done so. But he didn’t disclose it to the right people
in the right way.
Third, like me and most unsuccessful whistleblowers, he is
accused – maybe even rightly – of being insubordinate and not doing his job in
just the way his bosses wanted. That he
may have been right in his insubordination means little. He provided the justification Gibson needed to
fire him.
Fourth, his employer covered its tracks with written
policies and procedures. In this case,
the County pointed to policies against harassment. And at least occasional discipline of bad
actors.
Finally, the stakes are so small that few really care. Davis was paid $13.76 an hour when he was
fired. By the time he filed his lawsuit,
he had lost about $7,000 in wages, assuming he had not picked up another
job. It would not be surprising if the
county settled, threw maybe $10,000 his way, of which his attorney might take
40%, and inserted a nondisclosure clause so no one will hear about it again.
All this echoes my claim
against HomeFirst Services of Santa Clara County and its successful
defense.
In the early days of whistleblowing, Ralph Nader[1]
focused on big public health dangers. Moral
philosopher Sissela Bok[2]
urged potential whistleblowers to reflect on whether the wrong poses a serious
threat. The minor problems Davis and I
raised surely fell short of meeting their standards.
To be effective, Bok counseled, whistleblowing must arouse
its audience. Davis and I have inspired
no one. Davis’ case is still young: he
was fired just four months ago. He and
his attorney may surprise yet. But my
whistleblowing began in 2013 and I was fired 4 years ago. My legal options are dead, and my chance for
a following has died as well.
Many whistleblowers regret getting involved after they see
how little they accomplish and what they must suffer. In my case, HomeFirst seems to be rolling
along as before. The then-senior managers
moved on to new organizations, unaffected.
All but two of the Board members have left as well. No one else suffered – or gained – much from
my adventure. There is scant opportunity for satisfaction.
If we achieve little or nothing and we lose something or much,
why do it at all? Is it, as some suggest,
because we are moral beacons and we fret about the public interest? For some that may be true.
But I don’t believe that Davis or I got into our
whistleblowing primarily because of a desire to do good. If we could not have lived with ourselves otherwise,
as some whistleblowers contend, it wasn’t because we had to be true to our
moral selves.
I argue that many – maybe most – whistleblowers do what we
do because we can’t stand the organization, the leadership, or our boss or
peers any longer. Every employment
involves a trade of personal autonomy for money, prestige, or a different form
of power. When that trade-off no longer
satisfies us, we are ready to leave or to blow the whistle[3].
For Davis, that point seems to have come when Gibson rejected
his request for assistance and confirmed his sense of racial prejudice at his
job. For me, the irritant was a CEO and
boss who seemed intent on ignoring organizational failures, including legal
violations. It’s possible we were wrong
in our assessments, but we followed through by acting on them.
Our whistleblowing may have been futile. As small-time whistleblowers, our achievements
were insignificant. We live with the
fact that nearly all of what we do in life lacks lasting significance. We don’t feel the need to be heroes in the
rest of our lives so why should whistleblowing be different? Although it hurts, we must accept that we chose
to stand up even though we failed.
[1] Nader, Ralph, Peter
J. Petkas, and Kate Blackwell (eds.) Whistle
Blowing: The Report of the Conference on Professional Responsibility. New York: Grossman Publishers. 1972
[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
[3] Hirschman, Albert
O. Exit, Voice and Loyalty: Responses to
Decline in Firms, Organizations and States.
Cambridge, Mass.: Harvard University Press. 1970
