Whistleblowers and Authority

Whistleblowers and Authority

I started writing down thoughts on whistleblowing more than five years ago.  During that time I sent off more than 100 reports and follow-ups on complaints to authorities about possible violations by HomeFirst Services of Santa Clara County.  In 2014 I made my retaliation complaint to the California Department of Industrial Relations (DIR), which I trusted would protect me.  My perspective on authority has shifted since then.

Of the news articles I’ve collected on 1,000+ cases, the most interesting for me are those that reveal something about the intentions of the whistleblowers.  But because the majority are public employees or plaintiffs in false claims act suits, they don’t always seem relevant to my own dispute with a non-profit. 

A couple of years ago I began asking to see DIR’s rulings (“determination letters”) on whistleblowers’ retaliation complaints.  I received copies of some from 2014, 2015, and 2016 and nearly all rulings from 2017.  My requests have yielded letters for more than 500 whistleblower cases.  About 80% of those claimants lost, including me.

I have tried to categorize these cases.  They are split about 50-50, men and women.  Most involve wage issues: not being paid overtime, not being paid on time, or not receiving meal/rest breaks.  Wage-related complainants win much more often than people like me who identify possible other legal violations by their employers.  Companies usually claim the whistleblowers were fired because they did their jobs poorly or were belligerent or nasty to be around.  They were disgruntled employees whom the companies needed to eliminate.

Reading the letters and grouping the cases involves a tedious process of typing data into spreadsheets.  The excitement level changed, though, when I came to my own ruling. 

DIR deputy labor commissioner Eleanor Adams, who researched my complaint, recommended a ruling in my favor.  After sitting on her report for a year, regional manager Joan Healy decided HomeFirst won.  By that time I was 3½ half years into retirement.  Her decision was disappointing but not earth shattering for me. 

I was shocked, though, that Healy had got so much wrong in her letter.  Simple facts like who was on the audit committee and what my responsibilities were.  Slightly more complicated facts like whether the disclosures identified actual or plausible violations.  Still trickier issues like exactly what I said and when.

Most annoying was how Healy ignored email evidence showing the Board decided to fire me for insubordination just a few hours after I admitted reporting potential violations.  DIR clearly heard HomeFirst’s story but not mine.  Healy’s letter even used some of HomeFirst’s phrasings: “you would not or could not execute key aspects of the CFO position” echoed HomeFirst’s statement to a possible mediator.

In Healy’s telling, I was a complete jerk.  Maybe I was, or maybe I just responded to an unacceptable situation. 

Hundreds of other whistleblowers have suffered far greater pains.  This is no call for sympathetic tears.  Instead it’s a suggestion that rulings are made unfairly each year against hundreds of individuals who register legitimate complaints.  It warns that stories we read about others may be incomplete, or even untrue.

It’s hard to know for sure, though.  Heather Boshears joined the County of Alameda (Calif.) as Principal Auditor after getting a finance degree and nine years later a law degree.  Her tasks included several quarterly audits and the annual treasury audit.  When asked to sign the completed audits, she pointed out that although she was a CPA she was not legally authorized to attest to the reports.  Discussions ensued.

Then she found the County was misusing a fee in violation of State law.  She recommended the money be refunded to the proper account.  A couple of months later she was told she was no longer needed.

Despite her prior good performance reviews, the County had lots of good reasons to fire her, it said.  She had exceeded her authority, used poor judgment, failed to work collaboratively with County managers, and lacked leadership and communication skills.  Besides, her disclosure of the problems wasn’t “protected” because it was part of her job.  DIR agreed the disclosures had nothing to do with her being let go.  Based on the letter, a reader might conclude the County was justified.

But if you’ve been through this process, maybe you think differently.  Perhaps the authority here skipped over some relevant information in the 3½ years it took to come to its conclusion.  If you’ve read a lot of these letters and are aware of the poor odds on winning a whistleblower complaint, you might abandon hope.  You could conclude authorities systematically stop short of granting the justice we expect.

It’s a common feeling, this distrust of those who have special knowledge and sit in judgment on the rest of us.  William Davies has written (here and here) about a decades long decline in our trust of elites. 

In part, that distrust has been earned, he says.  Elites promised that global trade would make us richer, but only the elites seemed to benefit.  They forecast benefits from new technologies, but too many people lost out.  Down this path, we see how powerful companies defraud.  We watch politicians lie and self-deal, and we read biased media reports.  Science is uncertain except for padding the bank accounts of the scientists themselves.

In this setting, the lies and reprehensible behavior of a Donald Trump can be ignored because he is no worse than anyone else.  Climate change can be denied because opinions differ.  It is dangerous ground.

Davies argues that a new regime is emerging from this distrust.  In it, truth is presumed hidden in archives of data.  It is revealed not by DIR or any other authority.  Rather it is exposed by whistleblowers and others who are not content with the conventional story or satisfied with the experts.

In such a world, I think, we cannot count on authorities to determine what has occurred or to justify our actions.  We can only expose what we find and then try to move on. 

Boshears was selected as Super Lawyer Rising Star in 2017-19.  She seems to have continued her life and work despite Alameda County’s action and DIR’s decision.  Often whistleblowers are known as much for the retaliation they suffer as for the good they accomplish with their disclosures.  We might do better to praise guerrilla tactics for whistleblowing: disclose the information and then exit.  The organization is unlikely to change anyway.