Thursday, July 19, 2018

James Comey as Whistleblower


James Comey as Whistleblower

All whistleblowers have stories.  They report how they came to observe and then disclose suspected wrongdoing.  Their narratives explain honorable reasons for their actions and the dishonorable actions taken against them by their organizations.  James Comey, former FBI Director, spins such a narrative in his book, A Higher Loyalty: Truth, Lies and Leadership.

Comey begins with Salvatore “Sammy the Bull” Gravano who flipped to tell Comey, then a US Assistant Attorney, about Mafia life.  The “made men,” loyalty, and lies.  We know where this is headed: Donald “The Bully” Trump is going down, at least on paper.

Comey has worked for great leaders, he says.  Like the grocery store owner who didn’t ball him out for mistakes he made.  His experiences and personal study formed a philosophy: great leaders are decent, humble, kind but tough, and transparent.  They have integrity.  They listen and want to hear the truth.  They do not lie.

That philosophy has guided him.  No matter how he felt, he tried to walk with a bounce in his step, standing straight, and smiling at those he passed.  He never cut in line.

He knew bullies, too.  In middle school, well before he had grown to 6’8”, he was bullied.  In college he briefly joined in harassing a fellow student.  He regretted his participation, though, and vowed not to surrender moral authority to the group again.

He believes in balance: family is important to him.  His wife is a great leader, he says.  He had not supported Obama’s election, but he grew to admire the man after Obama named him to lead the FBI in 2013.

Comey’s narrative sets us up to like and believe him.  He has foibles but they are small and often amusing.  We can wince in sympathy when he bangs his head in a doorway while rushing for a meeting with President Bush and then tilts his head to direct the flow of blood away from view.

Whistleblowers often relate appealing narratives.  Cynthia Cooper[1] came from a small town and was supported by religion, family, friends, and staff on her way to becoming VP of Internal Audit at WorldCom.  Then she blew the whistle on that fraud.  I like to point to my long, modestly successful career in finance and to helping turn HomeFirst around before disclosing its misdeeds.  We want to be seen as honorable; we want our complaints to be heard.

With the stage set, Comey arrives at the controversial heart of his story: his announcements about the Hillary Clinton emails.  In July 2016, Comey announced that the FBI had closed its investigation of Clinton’s possible mishandling of confidential emails on her personal server.  Deviating from usual FBI practice in such announcements, Comey discussed at length the results of the investigation and called Clinton extremely careless.  On October 28, 11 days before the election, Comey announced the FBI had reopened its investigation of Clinton.  This announcement was also out of line with the usual FBI practices concerning investigations.  Then, two days before Election Day, Comey made another announcement: the FBI found nothing to change its July decision.

He made three disclosures.  Three instances of Comey wanting to be transparent, truthful, protective of the FBI and the country, and unwilling to grant moral authority to the group.  He stood up for what he believed despite the likely firestorm of opposition and criticism.  He is like other whistleblowers, including me, except he is big-time.

He recognizes other reasonable people might have handled matters differently.  He is nauseated by the possibility he might have influenced the election, he says.  He has been over those announcements hundreds of times.  He is convinced that if he had to do it all again, he would act just as he did given the role he played and what he knew at the time.

We whistleblowers are nearly all like that.  We all have months and years to reconsider what we did and why.  We retell our stories in legal filings, to friends and family, to ourselves, on silly blog posts.  Nearly all of us conclude we did the right thing.  Often we categorize it as something we had to do based on a higher loyalty, as Comey does.  Most of us don’t get paid for our retelling.  We must settle for narratives that justify our actions, explain how honorable we are, and demonstrate how our lives are all of a piece with our brave undertaking. 

On occasion, though, we see through our attempts at self-justification.  We admit we could well have acted differently.  We concede our purity was fiction.  When we do, we don’t excuse those who did us wrong or those who failed to support us when we hurt.  Lowering ourselves from a pedestal does not raise the wrongdoers.  It just clears away the gases of our bloviating. 

Once those fumes dissipate, though, a sadness remains.  The purpose is gone.  A career is done.  We are alone to rehash our losses, our embarrassment, and our final insignificance.  The evident emptiness of our actions is dismaying. 

Even though I sympathize with Comey’s desire to re-inflate himself, I can’t take his narrative seriously.  His attempt to rationalize his actions seems too transparent.  But maybe not to him.  The whistleblower industry is filled with organizations and individuals who lionize the act of whistleblowing.  I wonder whether I would feel better if I could still hold myself up as Comey does.  That possibility is gone for me.

Tuesday, July 10, 2018

Discouragement

Discouragement

News about whistleblowers can be disheartening.  We want to believe that what we did had social value even if it resulted in our being fired.  Like other whistleblowers, I wanted to see the world change, but it ignored my effort.

I hope movements like MeToo and BlackLivesMatter succeed, in part because their gains can help validate resistance by peanut whistleblowers like me.  Yet over the past few years the public’s interest in whistleblowing has diminished, if anything, at least judging by Google searches.  Sympathy may persist, but we are no leading edge of a revolution in corporate management.

The 2016 Retaliation Complaint Report from California’s Department of Industrial Relations (DIR), which enforces California’s whistleblower protection law, was discouraging.  While complaints of retaliations[1] tripled over the 2011 level, the number of determinations made by the DIR dropped by a third.  In 2016, 1,486 whistleblower complaints were received and only 141 determination letters were issued.  Of the determinations issued from 2011-2016, just 21% were in favor of the whistleblowers[2].

While I waited for DIR to respond to my complaint, I had examined determination letters from 2014.  At the time, I was optimistic although I saw risks.  HomeFirst was a nonprofit, and only 9% of those who complained about nonprofits were successful that year.  HomeFirst said they fired me because of my job performance, and just 15% of those accused of poor performance won their cases.  I was called insubordinate, a company defense that convinced the DIR 92% of the time.

The 2016 determination letters showed even greater risk.  Just 4% of claimants against nonprofits won, and the poor performance defense worked for companies 90% of the time.  Whistleblowers who identified legal problems, like those I alleged against HomeFirst, lost their cases 93% of the time.  In 2017 my own determination letter arrived and killed my dream.  The DIR believed HomeFirst, not me.

These letters can be depressing.  Lawsuits give voice to the whistleblower’s side of the story even if it loses in the end.  But in the letters, the DIR generally embraces the companies’ claims.  In the decisions we hear echoes of our own stories among the losers’ cases.

Take Alice Voluntad, whose experience parallels mine.  She was working for nonprofit United Health Centers of San Joaquin Valley in November 2013 when she saw what she thought were violations of Women, Infants and Children (WIC) regulations.  She raised the issues with her managers then and again in December.  She warned them she would report them to the State.  But she didn’t do that right away.

Instead, she waited.  The violations stayed uncorrected.  Relations with her team went south.  At her annual performance review in April 2014, she complained about her treatment.  She used a profanity to describe how the team leader made her feel.  Her language was inappropriate, she was told.  She was insubordinate.  She was written up and suspended.  Two weeks later she met with managers, and again she acted inappropriately, they thought.  Finally she sent her disclosures to the State.  The following week she was presented with a performance improvement plan.  Pissed off, she was insubordinate again and refused to sign the PIP.  So they fired her.

Like mine, Voluntad’s complaint to DIR seems doomed from the start.  Our adversaries were organizations that claimed to do great good.  United Health Centers was not just a nonprofit, it was exemplary.  It provides critical health care to rural poor in that agricultural region; 91% of its patients are Latino.  Similarly laudable, nonprofit HomeFirst serves the poorest of the poor – the homeless.  Our disclosures involved arcane legal violations.  Both companies called us insubordinate after we objected to their inaction on our complaints.  Both pushed us until they got what they needed.

The DIR concluded our terminations were justified and non-retaliatory.  HomeFirst ended my career.  Voluntad worked a couple of years more for Kings County as a part-time nutritionist, then retired back to her home in Oklahoma.

As statistics and our individual results make pretty clear, statutory protections against retaliation are no sure path to justice.  Big-time whistleblowers Edward Snowden and Thomas Drake questioned protections available to intelligence community members, but we are all vulnerable.  The inequity can make us angry.

HomeFirst did to me and United Health Centers did to Voluntad what companies usually do to employees who resist organizational misbehavior.  They fired us and cited familiar justifications.  They didn’t need a reason, though.  We were at-will employees who could be eliminated without cause, as HomeFirst was quick to point out.

We differed from other unhappy employees only in that we happened to see and disclose potentially illegal activities.  That chance circumstance[3] transformed HomeFirst’s CEO and board members[4] from effective to unethical managers.  It shifted Voluntad’s managers from good people to bad.

Voluntad and I did what many employees do when their situations no longer please them.  Feeling unable to leave, we pushed back and spoke out.  We converted our discontent into moral objection after witnessing our employers’ misdeeds.  

Then DIR tossed out our moral claims.  I was not a “good faith” whistleblower, it said, because I had objected too often.  Voluntad’s long wait before reporting the violations to authorities voided her claim on whistleblower status.

When I blew the whistle on HomeFirst, I performed a moral act that I hoped would produce social benefit.  Just as much, though, I did it for other personal reasons.  I thought the CEO was incompetent and the company would benefit if my whistleblowing led to her departure.  She insulted me more than I did her.  She made the final years of my career painful.  It sounds petty, I know.

Careers demand that we hunch over much of the time.  We are okay with that when it pays.  We don’t need great courage for our whistleblowing effort: standing up, especially at the end of a career, can feel good. Although we may get angry in our project, we should not be discouraged.  We act for reasons that we need to honor.  We should admit them even in defeat.



[1] Violations of California Labor Code section 1102.5, which covers complaints like the one I filed against HomeFirst Services of Santa Clara County
[2] Analyses of retaliation complaint reports and the determination letters I obtained from DIR are summarized in this excel spreadsheet.
[3] Cf Latus, Andrew.  Moral Luck.  Internet Encyclopedia of Philosophy. Accessed July 7, 2018. & Williams, Bernard. Moral Luck. Cambridge University Press, New York. 1981 
[4] CEO Jenny Niklaus and, in particular, board members Suzanne St. John-Crane (chair), Gary Campanella (treasurer), Mark Donnelly (audit committee chair), and Linda Chin (development committee chair), all of whom participated in the decision to fire me a day after I admitted disclosing a violation to the California Community Care Licensing Department.