Anatomy of a New Decision to Blow the Whistle
In October 2013 I identified Master
Leasing violations involving HomeFirst’s contract with the County of Santa
Clara and in the following month I identified the same violations in two HUD
contracts. The contracts required HomeFirst
to pay clients’ rent in a particular fashion – HomeFirst should lease the
apartment (the “master lease”) from the landlord and then sublease it to the
client – rather than reimbursing the client for his own lease cost or paying
the rent to the landlord on the client’s behalf as had been acceptable in past
years.
HomeFirst elected to move very slowly in switching to master
leases. Converting the clients’
traditional leases to master lease arrangements was a hassle; some nonprofits may
have obtained waivers from the new master lease requirement although HomeFirst
did not; and some questioned the value of master leasing in the first place
although the enabling legislation (HEARTH
Act of 2012, especially in the distinction between “leasing,” which
HomeFirst’s contracts permitted, and “rental assistance,” which they did not)
made clear enough the intention of Congress.
While I still worked for HomeFirst, I revealed these violations to authorities, but I did not file formal complaints for a few reasons.
First, violations or not, both the County and HUD continued to reimburse
HomeFirst for its ineligible “rental assistance” costs without the 25% “match”
(the portion payable directly by HomeFirst) required of such reimbursements. Second, HomeFirst’s CEO had directed the Program
Officer to investigate getting a waiver of the requirement. Third, by the time it became clear she would
not get the waiver, I was catching hell for my other disclosures.
Now, I have decided to blow that whistle if I can. I asked the County and HUD for copies of
invoices and contracts that might support my contentions. If I find adequate support, I will complain
to the HUD Office of Inspector General and the County that HomeFirst improperly billed them for ineligible
expenditures and I will complain to HUD that the County did the same to them. But why?
It is three years after the fact, and HomeFirst doesn’t have a pot of
overbilled money sitting around to repay them.
What is really to be gained?
I can offer some possible reasons:
-
I am doing now what I probably would have done
three years ago if I had had the energy.
-
I am now safely out of the company and
retaliation is unlikely.
-
What was wrong then is still wrong and should be
rectified (without lapsing into obsession
or scrupulosity).
-
Since leaving HomeFirst I have learned that fraudulent
billings on federal contracts, like these, can pose a special threat under the False Claims Act.
-
Because I have been modestly successful in
making requests for documents from these agencies, I am somewhat more hopeful
of successfully supporting my complaints.
-
In the past month, I have seen tentative signs
that my other complaints might be validated, and I sense some weakness in
HomeFirst’s position.
-
Technically, these complaints provide a new view
into the whistleblowing process based on an outsider’s access to documents and government
agencies’ possibly illegitimate pardons of HomeFirst’s misdeeds at the time.
-
Even if HomeFirst no longer violates this
requirement, the retention of taxpayer money falsely obtained would be an
on-going wrongdoing similar to the $1.2 million HUD overbilling and the
$140,000 County overbilling.
-
There is a possible revenge aspect: these complaints,
combined with the others, might be enough to push HomeFirst over the edge (perhaps
to shame, pain, or even bankruptcy).
In the eyes of some, the whistleblower starts off wrong and
must come up with a good excuse for making his disclosure. For others, the whistleblower is a hero because
of his noble intentions, which could later be found ignoble. My reasons may not amount to justification
for either group even if they satisfy me.
Years earlier I had to overcome the loyalty
argument against whistleblowing. But
now I owe no loyalty to an organization that fired me two years ago. Loyalty to my former colleagues, who might be
harmed by disclosures, dissipated after nearly all of them left HomeFirst and,
anyway, they did not rise in my defense when I was fired. My loyalty to the mission of the organization
and its social value is weak – HomeFirst has spent government and private money
for years without demonstrating that it has actually achieved a good result. In denying those loyalties, I might sound a
little bitchy, but after suffering retaliation loyalty arguments ring hollow to
me.
Some claim that individuals should disclose information
about possible wrongdoings only when they have reasonable expectations of being
successful. I am certainly not
optimistic about being successful in these new complaints. Still, I will file them with the right
evidence.
Elizabeth
Gilbert advised those who seek to live creatively – thinking first of
writers and artists of all sorts – that they should not put too much stock in
success. It may come, she writes, but
for most the external confirmation of success will be limited despite the great
energy they apply.
The whistleblower has embarked on a creative life. His reasons are his own, and he may not be
successful in the end. Gilbert advises writers
and other creative folk not to give up their day jobs, and the whistleblower
should be canny in how he goes about his project. He should be a trickster who plays by his own
rules, and not a martyr for the cause of nobility as the company would define
it.
Gilbert encourages creative people, among whom I would
include whistleblowers, to persevere. If
the work becomes too painful, you may give it up, she says. That is all right, but if what you chose to
do next does not satisfy, you may decide to return to your project knowing that
you will just have to persevere.
