Giving Up (On Matters Disclosed)

Giving Up (On Matters Disclosed)

As we begin our whistleblowing projects, we do not think about the day when we will have to give them up.  We believe that we are right and the authorities will act against the wrongdoer.  We do not think about how long it will take and what resources will be required of us.  We do not contemplate our eventual failure.

In his 1998 federal lawsuit, Robert Purcell, a former sales vice president of MWI Corp., described how MWI arranged for $74 million in loans from the Export-Import Bank to Nigeria to facilitate its purchase of the company’s water pumps.  Purcell claimed MWI concealed from the Bank that $28 million was an unusually high commission to pay to its Nigerian sales agent.  In 2002 the U.S. Department of Justice joined in Purcell’s suit.

For 18 years, Purcell and his attorneys slogged through discoveries, motions, judgments, and appeals.  MWI claimed it didn’t know the commissions were unreasonable and, anyway, no harm was done because Nigeria repaid the loans.  At one point, the U.S. was asking for $229 million.  Following a 2013 jury trial, the plaintiffs were awarded $22.5 million, including treble damages.  An appeals court decided in 2014 that MWI was liable only for $580,000 in civil penalties resulting from its failure to disclose the commissions.  Purcell, facing opposition from the DOJ, appealed that ruling to the U.S. Supreme Court, which earlier this month declined to review the decision.

Unbowed, Purcell, 82, called the result a terrible injustice and complained that he had been unable to introduce evidence of political influence by Governor Jeb Bush and others on the case.  The way government can be bought in our country cuts him to his soul, he said.  He shows, at least in these statements, a passion that I can imagine fueling his pursuit over the 18 years, as well as a cynicism to which I – and probably many whistleblower-losers – can relate.

Mark Grissom, a vegetation inspector in the Oakland, California, Fire Prevention Bureau, complained that the department’s inspections and reports were deficient, creating fire hazards in the Oakland hills that are notoriously susceptible to wildfires.  After two frustrating years of complaints and little response, Grissom left his part-time civilian position in 2015.  Following Oakland’s Ghost Ship warehouse fire in December 2016, Grissom’s emails came to light.  The City’s Fire Chief allowed that there had been some gaps in coverage but they had been filled, and the Mayor said that they took Grissom’s complaints seriously.

Here we have two apparently ethical whistleblowers.  Grissom was very small-time, and his success is impossible to measure because the authorities said what they usually do: the mistakes were minor, we fixed them, and safety is our highest priority.  The deaths of 36 people in the uninspected warehouse fire provide conflicting, albeit inconclusive, evidence.

Purcell’s case was a bigger deal and a clear failure for the whistleblower.  The False Claims Act, which enables the whistleblower-plaintiff to share up to 30% of the proceeds from a suit, encouraged him to go on, and the U.S. Department of Justice’s joining the suit reduced his legal costs.  Still, he might have given up years earlier than he did.

It’s always a question: how far to push when we know the company will resist our complaints vigorously.  From the outside, it strikes me that the Wells Fargo private bankers, for example, should have simply quit when they realized that the accepted way to meet sales goals was to create phony customer accounts.  Maybe they could have complained to government agencies and media after finding more worthwhile jobs.  But it is hard to know what to do when you are in the fog of war.

I should probably give up on my complaint about HUD’s failure to collect any of the $1.2 million that HomeFirst overbilled 10 years ago.  I made three complaints to HUD’s Office of the Inspector General, which is supposed to investigate such things, and got nowhere.  I complained to my Senator Feinstein and got nowhere.  I made four FOIA requests for copies of communications between HUD and HomeFirst on the matter.  The first three generated snippets of information; the fourth yielded no correspondence and a $182 bill for 2½ hours of research with a reminder that I’d have to pay it before any future FOIA requests would be acted on.  I might request a waiver of the fee or send another note to Feinstein, who ignored my last letter, but it’s pretty clear after three years that this complaint is dead and HomeFirst will get away with its misdeed.

I tried even harder with the minimum wage complaint.  I made complaints and paid visits to the State agency that oversees this issue, but they did not respond.  I tried the U.S. Department of Labor, which said it had no jurisdiction.  I tried the office that enforces the City of San Jose minimum wage ordinance, which after a year and a half decided that the individuals were not covered by the ordinance.  I argued against that conclusion to the City, the DOL, and several attorneys without getting a reply.  Two and a half years spent with no effect.  That’s too bad because this is, in Purcell’s words, a terrible injustice.  The hundreds of homeless folks deserved, it seems to me, well over $1 million of unpaid compensation.  I give up.

As in the HUD overbilling case, the government shows no interest in recovering the $140,000 HomeFirst overbilled the County of Santa Clara, but so far it has not billed me for asking for copies of their communications with HomeFirst.  The six other complaints, I mostly gave up on months and years ago.  There seemed to point to pursuing them.

It’s hard to give up after we have spent so much energy and we are so confident that we are right.  The Government Accountability Project maintains a stable of big-time past whistleblowers for hire to speak out on their experiences.  Grissom quit the City of Oakland in December 2015, but he came back again a year later following the Ghost Ship fire.  Purcell seems to retain a passion for his project.

We whistleblowers may be reluctant to accept fact that our efforts have been defeated and we must return to quotidian life.  The selves we found, who rose up heroically in our projects, must be set free so we can find new battles to fight.