Whistleblowing When You Know You Will Fail

Whistleblowing When You Know You Will Fail

Whistleblower projects tend to go on for years, and you have to wonder why exactly.

First there is the observation of wrongdoing.  You bring it up to management.  They push back and start retaliating against you.  After you are fired, you get an attorney involved.  Maybe there are negotiations; they take a while.  Complaining to a State agency can take a couple of years[1].  A lawsuit is longer still, with discovery, motions, rulings, and so on.  Then there are the appeals. 

My run at HomeFirst, start to finish, lasted 4½ years for nothing.  Others keep going longer: Robert Purcell stayed at it for 18 years.  He also got nothing.

Our projects last so long, and so many people warn that they will end badly.  We must all sense we will lose.  When – how many times – do we realize that we are going to fail?  Why not stop when we see our bleak future?

I began to understand things would not work out well a month after I disclosed the first of HomeFirst’s violations, its overbilling of Santa Clara County by $140,000.  At a meeting of the board’s finance and executive committees the board chair warned, this year will be challenging and we don’t want any more red flags.  Everyone else kept quiet.  I protested, asking if she wanted me to conceal wrongdoing.  No, just let CEO Jenny to decide what to do, she said.  That’s what I told him, Jenny said.  Everyone else’s silence made clear whistleblowing would not be received warmly by the HomeFirst crowd.

I continued to find more problems, and the CEO and board continued to do little while claiming they did as much as they could.  It was clear they would never act, but I persisted.  Why in the world?

Eight months after I began, I admitted that I had made two disclosures externally.  I wanted to protect myself.  The board’s attorney told them I had taken Whistleblower 101.  He advised firing me and negotiating a settlement of around $100,000.  After reading their emails, I was enthused and continued my work.

Time crawled.  The CEO built a case for firing me for cause.  I watched potentially dangerous emails accumulate in her Mike Veuve folder.  I began to look for an attorney.

The guy I found, Stephen Jaffe, assured me I had a case.  Of course.  I was enthused again.  I paid him a $5,000 retainer against a 40% contingency.  After HomeFirst fired me, Jaffe moved slowly.  I doubted he would perform.  I paid another $3,000 for a mediator.  It would save a lot of time, he said.  It would save him expense, I heard.  It became clearer I would fail, but I had no options and proceeded.

Jaffe didn’t work out.  He settled for $45,000 and a nondisclosure so tight I couldn’t even bitch to my wife about HomeFirst without giving back the money, including Jaffe’s 40%.  Jaffe said it was a good deal, a success.  Even if it felt like a failure to me.  I rejected it.

Then I complained to the State.  No additional cost to me, so I did it.  I asked to be reinstated, but I didn’t really expect that.  A clerk told me it would take 6-8 months.  After a year of following up, I decided the State would not help either.  The first draft of its determination letter was in my favor, I was told.  Mild but also disbelieving enthusiasm.  A year later, the final version ruled against me.  My final failure.

For the entire 4½ years, I continued to follow-up on my complaints about HomeFirst even though it was pointless.  One by one I had to abandon them.  At each step HomeFirst won; I lost.  For years now I’ve known I would lose.  It was like I found schadenfreude in my own defeat.

What brings this to mind is Chelsea Manning, whistleblower.  Manning gained fame after she released secret government documents to Wikileaks.  Her leak was soon discovered.  She was arrested, convicted, and sentenced to 35-years in a maximum security prison.  President Obama commuted her sentence after 7 years of confinement.

Now she fashions herself as a politician running for a U.S. senate seat in Maryland.  Manning is 30 years old, has no meaningful experience, and is a felon for betraying U.S. secrets.  She probably should have known how her whistleblowing would end, but she went ahead anyway.  Now she is spending time and money running for office despite knowing how that will end.  In explanation, she says the establishment needs to be challenged.  The animus that helped her to whistleblowing glory still burns in her.

What else brings this to mind is Stephen Jaffe, my former whistleblower attorney.  Like Manning, Jaffe sees himself as a politician.  He is running against Democrat leader Nancy Pelosi for her seat in the House of Representatives.  He has raised $66,000 against Pelosi’s $1.9 million.  Jaffe and everyone else knows he will fail, but there he is campaigning.  Judgment, I am reminded, is not necessarily his strong suit.

Why people undertake doomed projects is always something of a mystery.  We like to come up with explanations eventually, though.  About whistleblowers, we say they are moral heroes, the law or their professional standards demanded they do it, they wanted a reward, they tried to hide the fact that they couldn’t do their jobs, they wanted to destroy the organization, or something else. 

Professor C. Frederick Alford and some whistleblowers contend they had no choice but to blow the whistle.  It was a choiceless choice.  They could not have lived with themselves if they had remained silent.

Most of the time it’s pretty clear that our whistleblowing will not be useful.  No moral standard demands our profitless self-sacrifice.  We just waste our time and money on the project. 

I suggest whistleblowers will be free only if we accept that our motives were, maybe in large part, base and we knew we would fail. 

We were not compelled by anything.  We intentionally chose to blow the whistle (or whistles) despite the probable outcome.  We did not deserve victory any more than someone else deserves wealth or good health.  We lived, and we acted.

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[1] 2.1 years on average pass from termination to determination, based on decisions by the California Department of Industrial Relations in 2014 and 2015 (using copies provided by State).  My unfavorable determination letter came nearly 3½ years after HomeFirst fired me.