Adventures of a Small-Time Whistleblower: When We Lose (Part 1)

When We Lose (Part 1)

We whistleblowers always believe we have a case. We think we will win. But we seldom succeed.

In 2014 California’s Department of Industrial Relations (DIR) received 1,290 whistleblower complaints, including mine. It decided that only 47 complaints from 2014 and prior years were valid. The vast majority of complaints were rejected at once. Of those that made it as far as getting a determination letter, only 21% were decided for the employee. In 2015, the most recent year reported, results were even more discouraging: 1,696 complaints, 27 valid cases, and 17% of determinations in favor of employees.

Despite history most whistleblowers expect they will be different. We think we have something that others didn’t. Some egregious wrong outed, or serial wrongs in HomeFirst’s case. Some special evidence, like the emails I presented. Still we routinely lose.

I lost. The determination letter I received last week informed me I had failed to provide sufficient evidence to refute HomeFirst’s contention they had good reason to fire me.

DIR’s conclusion drew heavily on HomeFirst’s claims from three years earlier. I had not got on well with CEO Jenny Niklaus for more than a year before I was fired, Joan Healy wrote from the Labor Commissioner’s Office. Beginning in October 2013 my relations with Niklaus and the Board deteriorated quickly. The violations I cited had existed for years. I had lived with them until my relationship with Niklaus fell apart. When I identified compliance violations, I failed to offer solutions, as was my responsibility. If a solution emerged, I still complained. Most of my complaints were unfounded. I wasn’t a whistleblower because I believed there were violations but because I refused to act in the company’s interest. Healy used HomeFirst’s phrasing: I “could not or would not” do my job.

In September 2016, DIR staff had recommended finding in my favor. Healy reviewed the draft determination for 14 months. Still her letter contained startling factual mistakes.

Some were silly: she wrote that I chaired the Audit Committee. Everyone else knew that was untrue. The California Nonprofit Integrity Act prohibits staff from being on audit committees.

Some mistakes were substantial. She wrote that the violations I alleged had been evident for years. In fact, three[1] arose for the first time during the few months before I was fired. Two[2] had occurred earlier but were detected recently, and three possible problems[3] had breached our awareness only recently. She said the violations were all within my area of responsibility. In fact, Niklaus and her Chief Program Officer were directly responsible for most[4] of them. Healy wrote that I did not offer solutions when I called out violations although I recommended corrective actions with each internal disclosure. Just not actions Niklaus wanted to hear.

Some mixed silly and substantial. Healy wrote that I continued to complain about the County overbilling even though HomeFirst and the County had arrived at an amicable solution. In fact, no solution had been found before I was fired in June 2014. By March 2015 the County decided that HomeFirst financial position was so terrible it could not immediately repay the overbilled amount. In June 2017, HomeFirst was still trying to wriggle out of any repayment.

Many incidents are debatable nearly 4 years after they occurred. Did I tell Board member “cash forecasts” were a waste of time? Or did I warn them a particular 12-month forecast would be a waste of time because the Chief Development and Chief Program officers refused to cooperate? Did my relations with Niklaus and the Board deteriorate quickly after July 2013? Or did they deteriorate gradually due to my repeated comments about compliance violations and HomeFirst’s weakening financial position?

Debatable, too, is her legal argument. Was my belief in the many violations reasonable enough to satisfy California’s whistleblower protection law? Or did I need, as Healy seems to imply, a good faith belief in the organization, too?

Most painful for me, Healy completely ignored my email evidence. I thought they made clear Niklaus and Board decided to fire me in direct response to my admitting I blew the whistle on two issues. She didn’t explain why she didn’t consider them. Whether that was due to incompetence or conscious decision, I will never know. There is no chance to challenge their exclusion.

The California’s whistleblower protection process offers no opportunity to cross-examine witnesses or even to know who they are. It doesn’t permit any examination of the retaliator’s evidence or a chance to challenge that evidence. Healy’s conclusions are well beyond discussion.

In June 2017 California Labor Code 98.7 was amended from the 2013 version that applied when I filed my complaint. The old law permitted complainants like me to appeal determinations. The DIR seldom changed its mind, but reversals occurred on occasion. Under the new law, Healy’s decision is final. There is no appeal. Regardless of factual errors. Regardless of injustice or illegality.

Healy assured me that I could still sue HomeFirst. Given my unsuccessful first try with an attorney, I can’t imagine a second try would work out better, especially with my ugly determination letter in hand.

It doesn’t feel fair. I find that I am no exception to the norm for whistleblowers. I am not cleverer than the others. Perhaps I’m demonstrably dumber than most. My adventure cost me $8,000, and I refused a $45,000 offer. HomeFirst and those who joined in firing me or in watching it happen, they all roll happily along. A few are relieved that it’s ended, but most don’t care at all.