Adventures of a Small-Time Whistleblower: Whistleblower as Guide

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].