Friday, June 22, 2018

The Significance of Whistleblowing


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.


[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

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