Whistleblower as Guide
Alan Lightman writes[1]
that every culture has some concept of – and even longs for – the
Absolute. Religions succeed by offering Gods
that are permanent, changelessness, and perfect. They can anchor us and guide us through our
temporary lives, he says. One Absolute that has emerged
over the past 50 years is the whistleblower.
Not all whistleblowers are such inspiring guides. Some seem mundane. They disclose wrongs that injured them personally. Maybe their employers refused to pay them[2]. Or they were denied overtime pay they
deserved[3]. They were placed in unsafe work situations
by indifferent bosses[4]. They were denied pay increases because of racial
or sexual discrimination[5]. These individuals need courage to stand up
against unfair treatment, but their primary response is practical more than
moral.
Federal and state false claims acts (FCA) created another class
of whistleblower. Here, insiders witness
companies cheat the government and sue to recover the amounts stolen. The businesses may have put people at risk so
they could increase their profits.
Sometimes they improperly marketed medications[6], or they provided unnecessary medical procedures[7],
ineffective educational services[8],
or unwanted financial products[9].
Unlike the first group of whistleblowers, these were not
personally injured by the companies. FCA
laws gave them their chance for a rich payoff by correcting the wrongs. They earn moral praise because they defend those
whose rights were battered by the companies.
But FCA suits are at their core business decisions by plaintiff and
government attorneys who calculate whether to participate in the suits.
The purely moral whistleblower is one without a strong personal
interest. She is not motivated by greed
or revenge. Spurred by her conscience, she
makes her disclosures in good faith. She
understands that blowing the whistle violates expectations of loyalty to her
colleagues and employer, but she honors a higher moral value.
It’s these brave soldiers who capture the cultural imagination. Take the 10 famous whistleblowers highlighted
by Politico
in 2013. They were not in it for
money or spite. They stood up against
corruption, deception, and threats to public health. After the Politico piece
came Edward Snowden,
a feature in articles, books and films, out there defending our constitutional
rights.
Eric
Ben-Artzi fought Deutsche Bank which he claimed had issued false and
misleading financial statements during the economic crisis. His financial stake made him less than a
purely moral actor when he filed an FCA suit against the bank. The lawsuit was
successful. But Ben-Artzi earned serious attention when he
turned
down his 50% share of the $16.5 million reward. He had a nobler goal in mind: the bank
executives themselves should be held responsible.
These moral whistleblowers are new Absolutes. They seem to be perfect guides for dealing
with a messy, even dirty, world. They
also pursue an Absolute. They have faith
in the law and believe others do as well.
Consider Kevin
Simmonds. Simmonds became Director of the
English Program at Intercultural Institute of
California in March 2007. After
losing money in 2006 and 2007, IIC did fine financially in 2008. Then came the recession. It lost $112K
in 2009 and another $80K in 2010.
Since most students at this ESL school were foreign-born, visas were a
continuing issue. With declining
enrollment, the school didn’t need to lose more students to visa problems. His bosses subtly urged him not to be such a
stickler for rules. He tried to stay on
the right side of the law by objecting to missing visas. He was fired in June 2010.
IIC claimed he was fired for budget reasons. The California Department of Industrial
Relations (DIR), which received his whistleblower complaint, believed
them. It concluded the loss in 2010 was
proof even though IIC lost more money in 2009.
It accepted that Simmonds’ position was eliminated even though his
replacement was hired days after his termination. It rejected Simmonds belief that his bosses’
ambiguous directions were code for “ignore the visa regs.” It mocked the alleged scope of the problem. IIC had lost far more enrollment from the recession
than they might have from visa problems, it said.
Like Simmonds, I alleged legal
misdeeds by HomeFirst Services of
Santa Clara County. None of them really
affected me personally although, as an officer of HomeFirst, I shared
responsibility for complying with the law.
Like Simmonds and other whistleblowers, I supposed that the violations I
identified were meaningful and the laws were absolute.
It turned out the rules were not as firm as I thought. The Department
of Justice said it doesn’t like to punish companies that do good. The City
of San Jose simply forgave the wrong, and the County
of Santa Clara ignored the violation.
The DIR
decided that the violations were not new enough for its taste. It accepted HomeFirst’s statement that my allegations
were unsupported. So it rejected my
whistleblower complaint.
Lightman, an astrophysicist, observes that many past Absolutes
in science have been scrapped. The geocentric
universe, indestructible atoms, and absolute space and time were once accepted
as true. Further investigation disproved them all. The Absolute status of the whistleblower also falls away
under close inspection.
Her moral
motivations come late in the process, as icing on the emotional cake. Her evidence is almost always ambiguous. For this reason, the settlements on FCA suits, including
Ben-Artzi’s, usually end without the company admitting any guilt. These white collar crimes are just
difficult to prove.
Even more, the laws fail us.
They are far from permanent and changeless. They provide no anchor. Instead they seem to be ignored or negotiated
away by powers greater than us.
As Lightman describes the progress of science, this creation
and destruction of Absolutes is vital.
Knowledge cannot expand in any other way. It is not as clear that our loss of the
whistleblower Absolute leads to a new understanding, a new anchor. I like to think it does, but I’m just not
sure. Maybe the best we can hope for is
an acceptance that we are not the steady center of anyone’s universe[10].
[10]
Cf. Tyson, Neil deGrasse. Astrophysics
for People in a Hurry. New York:
W.W. Norton & Company. 2017.
