Whistleblowing and the Justifications
One of the awkward truths of whistleblowing is that both
sides think they are doing the right thing.
We whistleblowers believe that we are disclosing a misdeed by our
employer. Our employers are jerks that
think they did nothing wrong and firing us was a great idea.
In “Ruthlessness
in Public Life” Thomas Nagel observes that the great modern crimes are
committed by officials in political, military, and business organizations[1]. As group members, they can do far greater harm
than as private individuals. They can
oppress, murder, and steal far more than imaginable by most individuals.
Nagel wrote not long after the U.S. arguably committed war
crimes in southeast Asia, resulting in the deaths of more
than one million people. And not long after fraud by Enron executives destroyed $11
billion in shareholder value. Most of
us small time whistleblowers are not involved in such grand misdoings, although
stakes can still get pretty big.
A couple of whistleblowers found problems at venerable
Walgreens. S. Christopher Schulte, a
Walgreens pharmacist, and Adam Rahimi, a pharmacist formerly employed by
Walgreens, brought a false
claims lawsuit against the company. They
charged
Walgreens intentionally overfilled prescriptions for insulin injection pens. If a customer required 7 pens, Walgreens
would dispense 2 boxes of 5 and then remind the customer to refill the
prescription after 7 were used. The
result was that Medicare was overbilled millions of dollars. Walgreens admitted its misbehavior and agreed
to pay $209 million to settle the claims.
Recently Walgreens
settled a false claims suit brought by Marc Baker. Baker saw Walgreens encourage its Medicare
customers to sign-up for its Prescriptions Savings Club so they’d renew
prescriptions at its pharmacies. But instead
of charging Medicare discounted prices, it used its regular list prices. Walgreens again admitted its wrongdoing and agreed
to pay a settlement, this time $60 million.
Even a man as prominent as Stefano
Pessina, Walgreens’ CEO, might have trouble stealing $269 million from
taxpayers on his own. But with the help
of the world’s largest pharmacy company, the task was easier.
On a much smaller scale, Jenny Niklaus,
CEO of HomeFirst Services during
part of my time there, could not have stolen large sums as an individual. As CEO, though, she employed HomeFirst to grab
$130,000
from Santa Clara County and $138,000
from the City of San Jose. Unlike
Walgreens, though, HomeFirst never returned the money or admitted guilt.
For Nagel, these seemingly frequent bursts of immoral action
derive not just from the capacity of officials to do more wrong than private citizens. It comes as a by-product of their duties.
The actions of an official or an organization can appear brutal
but still be proper, Nagel says. Take taxation,
for example. It can be seen as little
different from highway robbery: the theft of wages or wealth. But the morality of the taxing agency –
judged by the equity of its actions and its use of money for the common good –
can justify the taxation. When those
principles are violated – if taxes are unfairly drawn or the money is wasted –
then the ruthlessness can lose its right.
An organizational leader – in the U.S. military, Walgreens,
or even HomeFirst – must submit to constraints on her behavior. She should put the organization’s interests
above outsiders’. She must not use her
position to enrich herself unduly. She is
bound to treat members of the organization equitably.
Nagel writes that an official can sometimes forget the
limits on her actions. She might decide
that all those restrictions on her behavior give her the moral cushion to
commit unethical acts. She might decide
that she has no obligation to consider anything other than the interest of her
group. Or she might be confronted by such
a complex array of interests and responsibilities that she fails to weigh the
consequences of her actions appropriately,
Nagel’s list of ethical lapses seems plausible. Niklaus objected to my concern about HomeFirst’s
possible violation
of licensing regulations. She argued
that the good done in the company’s homeless shelter should not be lost to petty rules. She and HomeFirst’s Board discussed
how to deal with me for telling authorities about possible legal violations. Their attorney
advised firing me right away because of damage I might do with my
complaints. Niklaus saw the danger but
chose to defer action just a little. She
recommended to the Board that HomeFirst should not be constrained by laws protecting whistleblowers.
Nagel’s list has been confirmed and expanded by psychologists,
including Dan
Ariely, Max Bazerman,
Joshua
Greene, Jonathan
Haidt, and Ann
Tenbrunsel. But outside of research
studies, it can be difficult to get into the minds of organizational leaders. Although I thought I had proof of HomeFirst’s
illegal intent, the Department
of Justice and the State
of California were not interested.
Unlike Walgreens, most companies and officials deny
wrongdoing even after they are caught.
Sunoco recently agreed
to pay $5 million to settle a lawsuit over 5,000 barrels of crude oil that
spilled from its pipelines and to spend money to avoid future spills. Still, it refused to admit having done
anything wrong. Paying the $5 million
was just expedient.
Officials regularly come up with justifications that fit
into Nagel’s list of moral failures. In 1995
José
Arias was hired by Angelo Dairy in Acampo, California. A couple of years later he told Luis Angelo he
was leaving for a job at another farm.
Angelo got upset and threatened to tell immigration the dairy hired undocumented
workers if he left. So Arias stayed on.
In 2006 Arias sued Angelo Dairy for failing to provide overtime
pay and rest and meal breaks. Just before
the trial in 2011, the company’s lawyer Anthony Raimondo alerted ICE that Arias
might not be properly documented. Spooked,
Arias settled. Then he filed a new suit
charging retaliation by Raimondo. That case
dragged on for 6 more years until a federal appeals
court ruled in his favor and he settled for $1 million.
Raimondo, though, denies any wrongdoing. He claims he took the same approach for many
of his clients and it was legal until
2013. He said, “All I ever did was
tell the truth to law enforcement. Is that
illegal?” With this, Raimondo sounds
like a whistleblower. He wanted to make
sure taxpayer money wasn’t used improperly defending illegals. He’s a moralist. He’s the only one in the case who didn’t
break the law, he claims.
There are at least two sides to every whistleblowing
case. Each takes the high moral
ground. One may eventually be declared victor. But that is a matter of
convenience, not probity. The judgment will
not settle the matter in the minds of all parties. Indeed, there may be no entirely convincing way
to determine which is right, or even more right than the other. In the end, the competing players may remain standing
angry at the edges of the field[2].
[2]
Cf. Tessman, Lisa. Moral
Failure: On the Impossible Demands of Morality. Oxford: Oxford University Press. 2015.
Especially her discussion of Bernard Williams’ “moral remainder.”
No comments:
Post a Comment