Transformations through the Four Phases of Whistleblowing
(Part 2)
3. Disclosure
After Divorce and Witness, in the
third phase of whistleblowing the observer of a suspected misdeed decides to
stand up and disclose the wrong. She usually[1]
acts first through channels provided by the company, sometimes hoping to remain
anonymous. She may begin to detect mild
retaliatory actions by her boss. She
forms ethical and legal arguments that favor whistleblowing and assuage her
fear of the possible retaliation in store for her if she continues. Her patience runs thin, and she discloses the
activity to external authorities – government offices, courts in what may
become a qui tam suit, or news media.
Retaliation increases, often ending with her termination.
In this phase, she moves decisively
off her company-assigned team. Even if
she sticks to internal reporting channels, she can no longer be trusted because
she has shown she doesn’t trust management’s decisions.
Over a period of several months Robert
Klym reported to Social Security Administration management his concerns
about processing failures in the office.
He first addressed managers in his local office, and later he wrote to
regional administrators. His case became
more robust as he went on, and he became more closely aligned with authorities
than with his local management. Finally,
he broke free entirely when he disclosed information to wisconsionwatchdog.org.
In a confidential
email to the Chair of HomeFirst’s Audit Committee, I expressed my concern that
the CEO Niklaus was retaliating against me in response to my questions about
the possible violation of State
licensing requirements. He
responded, bringing in half of the other board members and stating that they
did not see a problem. Although still on
the payroll, I was off the team, and a couple of weeks later I filed my first
external complaint. Thus freed, I
filed complaints concerning other alleged violations in just about each of the next
eight months until I was fired.
When whistleblowers disclose suspected misdeeds externally,
we hope to establish a trusting relationship with a new authority. We provide private information to our new
partner, who can be very demanding.
The FBI asked Thomas Howell to wear a secret
recording device while he acted as an informant for three years during their investigation
of the Town of Ball, Louisiana. After
that the Town fired him. Jill
Osiecki was a loyal Amgen sales representative for nine years. Then Amgen seemed to change its way of doing
business. In time she witnessed what she
thought were illegal activities. Osiecki
spent 15 months wearing a wire for the U.S. Department of Health and Human
Services as part of its investigation of Amgen.
She was fired in 2005 when her participation came to light. It took the government another seven years to
arrive at a settlement agreement in which Amgen agreed to pay the government
$762 million in settlement without admitting guilt.
Few whistleblowers wear wires to prove the cases against our
employers, but we all collect information. Three days after my
August 26, 2013 meeting with CEO Niklaus, I sent her and the program and
development officers information
supporting my contention that HomeFirst was violating licensing
requirements. Over the next two months,
I presented additional information to her and the Board. In late October I began to draft a complaint
letter to the State, beginning my interior conversation with my new
partners at the State of California.
4. Responses
The fourth whistleblowing phase
extends from one to many years as authorities respond to the whistleblower’s disclosures
and she – if she dares – responds to the retaliation she experienced. She engages an attorney to initiate negotiations or a lawsuit, successfully or not.
When we disclose suspected violations externally, we expect
to be heard by our new partners. We
don’t expect our disclosures to be lost or ignored as seven[2]
of my nine were. If we do not become
discouraged and give up, disregarded complaints can launch us into new complaints
and self-assertion. But our unsuccessful
efforts may also lead us to conclude that the system we had envisioned does not
exist, and the partners we had hoped for do not care about us after all.
I have initiated 36 complaints, requests, and follow-ups to
governmental officials and bodies about the County
overbilling issue during the past three years. Some of those officials and bodies responded although
several did not and many stopped responding after a few exchanges. In this instance, HomeFirst and the County agreed that
the wrong was done, but the improperly billed amount still has not been
repaid, even in part.
When complaints are rejected by authorities, all see the value of
the whistleblower’s effort as dubious. Wells Fargo employees for
years claimed to authorities that the bank was creating fraudulent accounts. The authorities took no action, however; the
employee reports meant nothing; and the bank continued operating as it had.
A small fraction of complaints filed with governmental agencies
result in decisions against the accused.
For example, from 2011, when the Dodd-Frank whistleblower program was
introduced, through 2016, the SEC received 18,334
tips about suspicious behavior and, inexplicably, issued awards to just 34
whistleblowers for information that resulted in SEC actions.
After the U.S. Department of Justice rejected my complaint of
alleged bid
collusion by HomeFirst, the Department attorney ignored my request for an
explanation. After investigators accepted
HomeFirst’s stories on the licensing
issue and food
handler card violation, they had no interest in my critiques of their
conclusions.
The effort we put into our whistleblowing makes it difficult for us to accept that we may have been wrong about the misdeed we
disclosed. We can never be sure whether our
complaint is ignored or rejected because it is unjustified, the matter is
trivial, our explanation is inadequate, or our employer is simply favored. But self-doubt may be healthier than a
perpetual obsession with being proven right.
When our complaints about company misdeeds fail to pan out
after years, we may distance ourselves from them emotionally. The righteous moral fury of our early
whistleblowing days wanes. We conclude
that the company and our hoped-for partners are scumbags, but we should have
recognized that much sooner. More
complicated is our response to the retaliation we suffered in response to our
whistleblowing. (To continue in Part 3)
No comments:
Post a Comment