What Were They Thinking? (Part 1)

What Were They Thinking? (Part 1)

Whistleblowing breaks an individual’s life.  It alters our comfortable progress. 

In July 2013, I had been CFO at HomeFirst for 6 years.  I expected to retire from my job in a few years.  My boss Jenny Niklaus was kind of an idiot, but I had worked for worse during my 35 years in finance.  We had different opinions on the 2014 budget, but we had disagreed on other financial issues during her money-losing tenure.

When I discovered we had overbilled the County of Santa Clara, I assumed we would return the roughly $130,000.  But Niklaus went a little crazy.  I asked about a different violation, and she went crazier.  Then I broke off in a new direction, finding and revealing more violations.

In 1997 Debra Halbrook joined the office of the District Attorney for Caswell and Person Counties, North Carolina, as a legal assistant.  She did administrative work for different elected DAs over the years, but Wallace Bradsher was unique.  When he took office in January 2011, he hired his wife to work for him.  He punched walls and threw things when he got angry.  And he always carried a Glock, concealed.  He told his staff, I am the Lion and you are my sheep, which struck devoutly Christian Halbrook as inappropriate.

Shortly after Bradsher took office for his second four-year term, his wife Pam went to work for DA Craig Blitzer in neighboring Rockingham County.  Blitzer’s wife Cindy came to work as a legal assistant for Bradsher.  Except neither Pam nor Cindy actually worked much despite being paid full-time. 

When Halbrook observed Cindy’s persistent absence, she asked questions.  She was told not to worry about it.  When she noticed an Assistant DA had the payroll system open on his computer, he lied and said he was training.  She asked why Cindy and Pam earned more than she did despite having less experience.  Bradsher replied, they were worth it.  Then she learned that Cindy didn’t have time for legal work because she was a full-time nursing student.

By June 2016 Halbrook was sure that something was seriously wrong.  But she was afraid of Bradsher’s response if she brought it up.  She talked to her husband and to the family attorney.  She eventually met with the State Bureau of Investigation (SBI).  SBI told her they would protect her, and they opened an inquiry.

Bradsher’s suspicions about her grew.  He relocated her office from Caswell County where she lived to Person County where he worked, 20 miles away.  He said she could return to the Caswell office if she got her husband, the Caswell Chief Deputy Sheriff, to convince his boss to install a particular digital discovery tracking system.  The installation would enable his loyal new assistant to remain on the Person payroll.

Bradsher demanded to know what she told the SBI.  She wouldn’t say, and he accused her of being disloyal to him.  He moved her desk to a storage room.  Finally he fired her when he found out Caswell wouldn’t use the tracking system.  She was months shy of her 20^th anniversary which would have brought a nice pension and life-time health insurance.

Both Bradsher and Blitzer have resigned.  Blizter turned on Bradsher, who had confessed to him he fired Halbrook for disloyalty, and pled guilty to a misdemeanor.   Bradsher’s trial continues.

At the start of it all, Halbrook lived in pleasant, small town Yanceyville, North Carolina.  She did well in a comfortable, valuable job until Bradsher troubled her.  She looked into a possible wrongdoing that she could have let go.  Bradsher insulted her, and she turned whistleblower, upsetting her life.

For his part, Bradsher was on a roll.  Running unopposed, he was re-elected in 2014.  He had a loyal staff.  Admin folks in the Caswell office deserved no attention from the Lion.  Then this woman kept asking questions, started an SBI investigation, and had to be fired.  It wasn’t retaliation; it was his right.

Small-time whistleblowers, like Halbrook and me, lead mostly normal lives and then we are blindsided.  Step by step through our dramas:

1.       Foundation

a.       Halbrook and I performed our jobs well before things went south.

b.      We became somewhat dissatisfied with our jobs and bosses, but we didn’t (or couldn’t) leave.  I stayed because of age and Halbrook because of her 20-year incentive.

2.       Problem and response

a.       We found something that seemed wrong.  Her discovery and investigation were outside her normal job responsibilities, but mine were part of my job.  She found one sort of problem, and I found several.

b.      Our questions alerted management to the risk we posed.

c.       The wrongdoings we discovered were not huge in financial terms.  Blitzer agreed to repay $48,000, and Bradsher might be on the hook for about $200,000 paid to his wife.

d.      The wrongs were not egregious in moral terms either.  The Bradsher-Blitzer misdeeds were more offensive than the usual nepotism because of their role in the legal system.  HomeFirst’s disturbed me most because of our pretense that we did great good.

e.      Halbrook and I observed simple violations of common rules, not complex ethical transgressions.

f.        Neither Halbrook nor I was personally affected by the wrongdoing unless you count misuse of our tax dollars.

g.       We talked with friends and spouses about what we should do and the risks of blowing the whistle externally.

h.      We were both encouraged to believe that the law would protect us against retaliation.

3.       Retaliation

a.       We were charged with disloyalty to our boss/company for bringing up the misdeeds.  HomeFirst argued that I should have fixed, not reported, them.

b.      We suffered retaliations, ranging from inconvenience to insult and finally termination.

c.       The retaliations multiplied as our bosses became more certain of our disloyal intentions.

d.      Our bosses/companies figured they had a perfect right to act against us regardless of laws and ethics.

4.       Response to retaliation

a.       Halbrook’s attorney has taken an aggressive approach, charging violation of whistleblower protection and the State RICO Act, obstruction of justice, and causing emotional stress.  My attorney wimped out in negotiations with HomeFirst.

b.      Because Bradsher and Blizter were elected officials, Halbrook’s case received media attention.  My case won no attention at all despite my attempts to raise interest.

5.       Consequences for wrongdoers

a.       Blitzer admitted guilt, but Bradsher fights his prosecution.  Nearly everyone at HomeFirst has moved on to new opportunities without penalty.

b.      It’s too early to know whether Caswell/Person Counties or HomeFirst will be penalized.  HomeFirst’s insurance will probably make any judgment against it painless.

6.       Consequences for whistleblowers

a.       We were both fired.

b.      My case has been underway for 3+ years and will probably continue for at least a year more.  Halbrook’s suit was filed just 7 months ago.

c.       Halbrook may collect something for pay and emotional stress.  If I receive anything at all, it will be limited to past wages.  No big payoff for either of us.

d.      We both will survive.

Like everyone else, we act without foreseeing all the consequences.

Whistleblowing and Social Activism

Whistleblowing and Social Activism

Whistleblowing is fraught with uncertainty.  We are troubled by questions.  Were the whistleblower’s intent were pure enough[1]?  Was the misdeed bad enough to justify betrayal of his colleagues[2]?  Was his proof was sufficient[3]?  Did the organization really retaliate against him[4]?

Clarity seems possible in restricted cases.  HomeFirst’s violation of California licensing rules, for example.  My external disclosure followed months of inaction by management.  I acted after lengthy research on the law and the company’s actions.  The Board decided to fire me two days after I revealed my disclosure.  Pretty clear.

Also straightforward: Katrina Brown, a Detroit teacher, complained about lead- and copper-tainted water at John R. King, a K-8 where 98% of students are black and 71% are poor.  She became vocal about overcrowding and overheated classrooms.  That triggered reprimands, a poor performance review, and transfer to a school far from her home.  Then she was fired.

Where wrongdoing is widespread, things get trickier.  Brown’s April 2016 objections to King school conditions fell on the heels of district-wide teacher protests over racially biased uses of dwindling resources.  HomeFirst’s licensing violation was just one of eight infractions I disclosed externally[5] and a longer list of compliance violations discussed with the Board two months before my final day.

Multiple misdeeds can emerge from a culture that encourages wrongdoing[6].  We saw that in Enron.  More recently Wells Fargo’s culture was blamed for its wide-spread false-accounts scandal.  Then came evidence that Wells had vastly understated the extent of that fraud.  And evidence that it charged borrowers for insurance they had not requested.  And it improperly changed mortgage terms.  Only time spent in research, it seems, limits the length of the list of Wells’ wrongs.

When culture is the core problem, managers like to claim their acts are the result of legitimate strategies – as Wells Fargo declared – or necessity – as Detroit’s bankrupt school district complained.  Or the fight against terrorism for the New York Police Department.

Bobby Farid Hadid was granted asylum from Algeria in the mid-90s.  He sold hotdogs on New York City streets.  He drove a cab.  He fixed copiers and got married.  Grateful for his new home, he joined the NYPD after 9/11.  He advanced steadily in rank.  He joined the vice squad.  He became a member of the Joint Terrorism Task Force working with the FBI.

Acting as an interpreter in a long cold case, he traveled to Paris.  He convinced the prime suspect’s girlfriend to turn on him.  Kargu’s confession won praise for Hadid and the other two officers involved.

Back in New York he was invited the join the NYPD’s Citywide Debriefing Team which gathered terrorism-related intelligence.  They recruited people guilty of minor crimes.  Hadid was told they wanted individuals who could go to mosques, bodegas, and other places his people went.  Sources should listen and bring back data.

After a few months, Hadid decided that the unit’s approach was wrong and completely stupid.  He would not be a part of that.  He objected.  He spent more time in his office.  The unit’s senior officers met to discuss their suspicions about him.  He traveled alone a lot.  His office was close to where confidential documents were kept.  His reports revealed discrepancies.  So NYPD transferred him to a Queens precinct that had a lot of Muslims.

Kargu’s trial began in October 2010.  His defense fabricated a romance between Hadid and Kargu’s girlfriend.  After the conviction, NYPD began an internal investigation into Hadid.  They took away his gun, badge, and uniform.  They stuck him in a room with other police outcasts to watch surveillance videos.

At Hadid’s trial in October 2012, the judge found him guilty of perjury in his testimony against Kargu.  With the felony he couldn’t sell hotdogs or drive a cab.  It took two years for Hadid to get the conviction vacated.  After he did, he asked to be reinstated.  But the NYPD cited performance issues.  He was a problem child.  His lawsuit for malicious persecution was dismissed.  Hadid is appealing but his chances are dim.

Other Muslims in the NYPD report hostile responses if they, for example, wear beards for religious reasons or speak Arabic on a phone call.  Failing to assimilate spawns resentment, they find.

Hadid does not present himself as a whistleblower.  Still his experience is familiar to whistleblowers.  Dedicated to the mission of his organization, he saw behavior that was wrong.  He called it out and was punished.  The organization claimed its behavior was necessary to do its job and concluded he should be fired. 

Whether he can rightly be called a whistleblower is uncertain.  He suffered as a result of the NYPD’s – and America’s – possibly justifiable fear of Islamic radicals.  And their unjustified suspicion of all Muslims.  Hadid’s supporters might defend his whistleblowing, but even more they are activists in favor of a just society.

Other minority groups – people without power – report ordeals that match Hadid’s.  Police disproportionately arrest and shoot black men.  Dominant whites have long demanded for assimilation from Asians, Latinos, and other immigrants to America.  Male-run businesses have long preferred to pay heterosexual males more.  Corporate managers reward themselves before their underlings.  The wealthy justify policies that further concentrate treasure close to themselves.

Social activism grew over the past sixty years to fight abuses based on race, ethnicity, gender, sexual orientation, and economic position.  And with it, whistleblowing expanded dramatically over the past forty. 

The line between whistleblowing and activism is blurred.  Joel Clement called himself a whistleblower when he exposed the Trump administration’s anti-climate-science stance to the few who had been unaware.  Susan Fowler sounded like a whistleblower when she described sexism at Uber.  Then she went further as an activist, presenting an amicus curiae brief against arbitration agreements that block collective employee actions against illegal employment practices[7].

Like all activists, whistleblowers do what we can and deal with the issues that touch us.  We fail only when we are silent.

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[1] See “The Mystery of Whistleblowing” and “Whistleblowing & Getting Even.”

[2] See “Small Potatoes”, “A New Whistleblower Ethic (Part 1)” and “Should You Become a Whistleblower? (Part 2)”

[3] See “Whistleblower Opponents: Proof (Part 1)” and subsequent parts.

[4] See “The Punishment for Whistleblowing”

[5] In addition to its unresolved HUD overbilling

[6] Ashforth, Blake E., Dennis A. Gioia, Sandra L Robinson and Linda K. Trevino. “Re-Viewing Organizational Corruption.” Academy of Management Review. 33.3 (2008): 670-684; Campbell, Jamie-Lee and Anja S. Goritz. “Culture Corrupts! A Qualitative Study of Organizational Culture in Corrupt Organizations.” Journal of Business Ethics 120 (2014): 291–311; Kish-Gephart, Jennifer J., David A. Harrison, and Linda Klebe Trevino. “Bad Apples, Bad Cases, and Bad Barrels: Meta-Analytic Evidence About Sources of Unethical Decisions at Work.” Journal of Applied Psychology. 95.1 (2010): 1-31; Palmer, Donald. Normal Organizational Wrongdoing. Oxford: Oxford University Press. 2012

[7] Another whistleblower, Ellen Pao, became an activist publicly and in a corporate setting.

Truth & Justice in Whistleblowing

Truth & Justice in Whistleblowing

Whistleblowing tests our grasp of truth and justice.  Take James McDonough.

In April 2008 James McDonough and his wife Vanessa bought their home in unincorporated Homestead, Florida.  A year later McDonough, while out for a walk, found the car that had recently driven too fast through his neighborhood.  It belonged to Alejandro Murguido[1], a Homestead police officer.  Murguido encouraged McDonough to come and talk to him about any problem, like a neighbor and gentleman, rather than file a formal complaint.  Good enough.

On October 24, 2012, Gurguido again drove recklessly through their neighborhood.  McDonough was forced to drive off the road to save himself.  On the 29^th he visited Murguido’s house and lectured him about lawful driving.  Then he walked away.

Within minutes Murguido raced up behind him in his police cruiser.  Murguido’s friend from across the street, also a policeman, joined him.  Soon six fellow officers arrived.  They detained McDonough, frisked and interrogated him.  Murguido told him not to mess with police officers.  After 90 minutes they let him go with a warning to stay clear of Murguido’s house in the future.

The incident so unsettled McDonough he could not eat or sleep.  He had anxiety attacks.  He called the FBI, who told him to report the matter to the Homestead police internal affairs department.

On November 1, he went to Campbell Urgent Care in Homestead where he told Dr. Ernesto Rodriguez about the incident.  Rodriguez wrote up his report: psychotic, schizophrenic, hallucinations, may need to go to the psych ward per the Baker Act.  Then Rodriguez called the Homestead police.  Officer Blanco arrived and questioned McDonough for two hours before releasing him.

McDonough tried to complain to the Homestead and Miami-Dade County internal affairs offices.  They didn’t return his calls.  He sought help from his State Representative Holly Reschein.  Nothing worked.

At a Citizen Advisory Council (CAC) meeting in February 2013, Major Artime of the Miami-Dade police said he would follow-up with his internal affairs department.  After the meeting two police officers held McDonough and interrogated him for 30 minutes.

Three days later Murguido filed a complaint of felony aggravated stalking and corruption against McDonough.  Homestead internal affairs officer Aquino had advised Muguido to make the charges, which were later dismissed.

In April, five Miami-Dade police officers entered McDonough’s home without a warrant.  They arrested him and hauled him off in handcuffs.  At a Miami-Dade prison he was strip-searched and held for 18 hours.  The charges were finally dropped in January 2014.

In February, McDonough met with Homestead police chief Rolle to discuss his concerns.  Rolle told him the “Police Officers Bill of Rights”, unfortunately, barred McDonough from complaining about the October 2012 incident.  He could, though, complain about Murguido’s revving his motorcycle and chirping his siren outside McDonough’s house a week earlier.  Rolle assigned the investigation to an officer that McDonough told Rolle had infringed his rights.  The officer concluded the complaint was unfounded.

McDonough continued to attend CAC meetings although he was not always allowed to speak.  He attended Homestead city council meetings, but they passed a decorum rule prohibiting comments like those McDonough presented.  He posted notes and recordings of his interactions with police on various online media sites.  He attracted some press attention.

Murguido tried unsuccessfully twice more to get injunctions against McDonough.  Then in December 2014 State Attorney Fernandez-Rundle sent him a cease-and-desist letter[2].  Acting as his own attorney, in January 2015 McDonough sued Fernandez-Rundle.  In July 2017 he won in the 11^th Circuit U.S. Court of Appeals.

After five years of abuse from Homestead, Maini-Dade county and Monroe county officials, McDonough had had enough.  In August 2017 he and his wife filed (through an attorney) a lawsuit against 36 parties.  Municipalities, police officers, city officials, and the urgent care facility and doctor were all named.  They cited thirty-two causes of action, including unreasonable seizure, warrantless search, false imprisonment, violation of civil rights, and RICO Act and HIPAA violations.

James McDonough’s experiences mirror those of other whistleblowers.  He witnessed a misdeed during the course of his daily activities.  Like many others’ disclosures, the initial violation was not earthshaking.

He tried to report the wrong through established channels but was rebuffed.  Things spun out of control.  He suffered more and increasingly brutal retaliations.  He appealed to higher authorities, but none would protect him.  He developed new skills to fight his opponents.

He and his wife suffered personal attacks.  Authorities called him schizophrenic.  They called her sexually promiscuous.  They published his personal contact information.  They made false statements about them both[3].  The McDonoughs' marriage is stressed to near breaking.

McDonough also presents unique qualities as a whistleblower.  He is not a member of the organization he exposes.  Unless we accept that the offending organization is the body politic.

Most whistleblowers have financial skin in the game.  They hope to recover pay the organization denied them in retaliation for blowing a whistle.  Or they seek a share of penalties imposed on the wrongdoer.  Financial interest opens a kind of Ultimatum Game in which the organization hopes to make the stingiest settlement offer that will not cause the whistleblower to turn away in disgust[4].

McDonough lacks a financial investment in his project.  He and his attackers share no basis for negotiation.  He has only self-respect he will not trade, and they have only their precious power.

McDonough’s and most whistleblower cases struggle with evidence.  Readers often have only the parties’ statements to go on.  We are reluctant to believe our public servants could be so nefarious and commit such outrageous acts against an innocent man and his wife.  We hesitate to believe nonprofit HomeFirst which aims to help homeless people could have done so many things wrong and retaliated against me for reporting them.  Or our government would violate our privacy without good reason as Edward Snowden claimed.

In these cases justice seems elusive.  It can be easier to accept that the whistleblower is crazy, disgruntled, or a performance problem.  Discovering the truth demands long, hard work.

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[1] Murguido would be the top producer on the Homestead traffic unit in 2014.

[2] HomeFirst sent me a cease-and-desist letter the year after it fired me because I continued to pursue my disclosures.  Despite my initial panicked reaction, I ignored the letter.

[3] Including that 1) McDonough is aggressive or combative; 2) McDonough is psychotic; 3) McDonough is a schizophrenic who is delusional; 4) McDonough considers himself a “sovereign citizen;” 5) McDonough is threatening and aggressive; 6) McDonough and his wife are crazy; 7) McDonough has a history of clinically diagnosed mental health problems; 8) McDonough is a “Baker Act,” who stalks police; 9) McDonough committed/commits theft of government property/resources; 10) McDonough was committed to a mental institution because his wife sleeps with cops; and 11) McDonough’s children are not his because his wife sleeps with cops.

[4] I found HomeFirst’s offer to me offensive, but my attorney (with his own motivations) advised that it was a good deal.

Whistleblowing & Getting Even

Whistleblowing & Getting Even

Whistleblowing starts with a dissatisfaction.  Which becomes an itch that eventually finds an ethical violation.  It did for me anyway.

The ethical violation is usually real enough.  It deserves disclosure.  But the whole thing starts earlier than that.

We want that ethical violation to be corrected, sure.  But we also want something else.  We want to get even – for the retaliation or for something before that.  The problem is whistleblower cases can drag on for so long that no one is left to get even with.

The board chair so hot to be rid of me, Suzanne St. John-Crane, left HomeFirst Services of Santa Clara County five months after I was fired.  CEO Jenny Niklaus left after seven months.  Treasurer Gary Campanella quit the board a year after he and Niklaus fired me.  My HomeFirst peers, the development and program officers, decamped.  My staff have gone.  Three of the five program managers work elsewhere.  Over the three years, nine of the eleven board members moved on.

Lots of times, whistleblowers settle their lawsuits against the private companies that retaliated against them.  Their agreements prohibit them from ever discussing their cases[1].  That secrecy produces an empty sort of getting even.

It’s nearly as empty when the people who let you down and the people who harmed you are gone.  No one who is left knows or cares anything about you.

Whistleblower cases in the public sector, where staff turnover is lower, are sometimes different.  Master Corporal Brandon Eller joined the Idaho State Police in 1997 and moved to ISP’s Crash Investigation Unit in 2004 .  Things went well enough for him until 2011.  On October 18, Deputy Sheriff Scott Sloan responded to a 911 call.  Traveling at 115 mph down the left side of a two-lane road, lights flashing, Sloan struck Barry Johnson’s car as he turned into his driveway.  Trooper Justin Klitch, the investigating officer, called Sloan’s an unsafe operation.  The draft report by Corporal Quinn Carmack concluded Sloan’s reckless driving caused the accident.

Captain Richardson and Lieutenant Kelley called a meeting with Eller, who had interviewed Sloan.  They pressed him to agree that Johnson’s slightly elevated blood alcohol level was the real cause of the accident.  He refused.  Then Richardson and Kelley urged Carmack to modify his report to shift blame to Johnson.  He also refused but agreed to mention the alcohol blood level and Johnson’s possible failure to put his turn blinker on.

Sloan was charged with vehicular manslaughter.  During the April 2012 preliminary hearing, Eller and Carmack testified to these facts.  By this time Klitch had changed his mind and said Sloan had not driven recklessly at all.

ISP Lieutenant Kelley, Captains Richards and Zimmerman, and Majors Hudgens, Rollins, and Wills met with Sergeant Rice, who supervised Eller.  They told Rice that Carmack and Eller had “laid them out.”  They talked about taking the men off the crash unit.  A few days later Colonel Powell met with the officers and Rice.  They decided that Eller and Carmack could not be trusted.

Eller was reassigned to patrol duties, and he began getting negative reviews[2].  He filed a lawsuit and recently won a $1.5 million jury award.  Seven years after the incident. 

This whole time Eller and Carmack have continued to work with ISP.  Sloan was fired but not convicted due in part to Klitch’s testimony.  Rice was reprimanded for concealing evidence in the case, but Klitch, Kelley, Hudgens, and Wills all remain with ISP, working at higher level jobs.

It took HomeFirst just two months to fire me after I admitted disclosing its suspected wrongdoing.  Those two months were miserable.  Niklaus was nasty.  Board members carped.  The old friendly conversations were replaced with cool suspicion.  Everyone at a distance.  I can’t imagine living through what Eller has for seven years at ISP.

Whistleblowers who try to stick it out often give up.  They quit and claim constructive discharge[3].  Or they feel forced to retire[4].  When they do, the company is quick to claim that the whistleblower wasn’t fired; she quit[5].

Now that Eller has won his lawsuit, maybe he feels he’s beaten a bad lot of people.  Some do feel vindicated[6].  If I ever win my complaint against HomeFirst, I doubt that I will feel satisfied.  The people who caused me to turn to the State have vanished.  They will never need to admit wrongdoing.  They will never feel remorse for what they did.  An insurance company will pay the settlement amount, and the company will delete a footnote in its audit report.

I suspect that my itch will continue[7].

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[1] See the agreement that HomeFirst proposed to me as an example.

[2] Eller has been variously accused of having a negative attitude and poor communication skills, being a disgruntled employee, causing dissension, failing to complete his work, and failing to maintain high standards of personal and professional responsibility.

[3] For example, Danielle Sullivan, Jennifer Worthy

[4] As examples, Rustyann Brown, Beth Burns, Robert Churchran, Randy Henry, Linda Hobson, Joseph Lovelace, Brent Ritchie, Valerie Riviello-Drew, Robert Smith, and Brian Sullivan

[5] As examples, Miko Carson, Charles Miller, Heather Phillips, and Jodi Ramirez

[6] For example, Maeve Kennedy Grimes and Ian Minto

[7] Compare Robert Purcell.

Whistleblower Requests for Public Documents

Whistleblower Requests for Public Documents

Real journalists use the Freedom of Information Act to obtain government documents that expose important stories.  For example, how FBI staff support Ex-Director Comey.  And how conservative Sinclair Broadcast Group has avoided regulation since Donald Trump’s election.  Real journalists seem to know how to use the FOIA to get information people deserve to see.

California’s Public Records Act of 2004 makes state and local records publicly available, mirroring the access FOIA provides for federal documents.  I sent my first PRA requests to Santa Clara (California) County in June 2014.  I asked for information concerning my whistleblower complaints about HomeFirst’s contract overbilling and food handler card violation.  The County attorney replied that everything was protected by attorney-client privilege.  I got nothing.

Also in June, I asked for copies of emails and reports from the City of San Jose relating to my bid collusion complaint.  Its attorney said all of that was protected except for the City’s short note to me saying there was no problem.  I filed a State records request about my complaint that HomeFirst had violated its EHAP loan requirements.  It answered that it could not find the complaint.   Clearly I did not have the technique perfected.

Then I narrowed my focus.  I would investigate HomeFirst’s repayment of the $1.2 million it had overbilled HUD and the $140,000 it overbilled the County.  Specifically, HUD’s and the County’s communications with the company about paying back the money it owed.  Involving specific people and departments in HUD and the County and with limited date ranges, lest there be any confusion.

After filing three complaints with HUD’s Office of the Inspector General on the overcharges, I made 9 FOIA demands over the past two years.  Two were lost or ignored.  The others yielded small bits of information, but they revealed no serious attempts to get the money back.  HUD is supposed to provide materials within about a month, but they dragged their feet for six months on the last one.  Even though suspected violations of law are involved, the HUD FOIA liaison now wants me to pay for some of the costs.  So I have to appeal that demand.

Recently HUD has taken another new tack.  It’s asking HomeFirst for permission to release communications to me.  HUD relies on the FOIA Exemption 4, which protects trade secrets and commercial/financial information.  Since we’re talking about repaying a lot of money, HomeFirst might well seek to keep the records secret.  Still, HUD previously sent me a copy of HomeFirst’s July 2016 “distress letter,” admitting that it could not repay the money[1].  Maybe I will get something interesting.  We just passed HUD’s 20-business-day deadline for responding to my most recent ask, and I have seen nothing yet.

Santa Clara County has been, by comparison, a pleasure to deal with.  The County website directs inquiries to the Environmental Services Department.  They tell me when they forward my emails to the right department.  They won’t tell me who I should have sent it to.  But we have our routine.  Every couple of months I ask for copies, and a month later I get something back or am told there is nothing available.  No demands that I pay for the material.  As with the HUD overbilling, there’s no sign that HomeFirst’s swindle of the County will be undone soon.

My three years of sending out 33 requests for public documents have produced little of any value.  Occasionally a government employee felt prodded to take a small step toward investigating my complaint.  Mostly the responses confirmed how little I have accomplished with my disclosures.

We read about whistleblowers who win big settlements[2].  And about those who are lionized for their sacrifices[3].  While not diminishing those real sacrifices which no sane person would welcome, it is worth noting that most whistleblowers fail silently.  Most weeks bring soon-forgotten stories of those who lost[4].  Most of whistleblower complaints to California’s Department of Industrial Relations, for example, are dismissed without consideration.  Of the others, 75% are decided against the complainant.  We hear nothing of them.

If we seem to accomplish little through our efforts, that is no reason to stop doing what we can.  Living and fighting seem to me the only viable choice we have.  Regular complaints and public record requests are part of the fight.

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[1] The letter went undisclosed in HomeFirst’s 2016 audit report, published in October 2016.

[2] As examples, Mary Bozzelli and Victor Bibby & Brian Donnelly

[3] Like Chelsea Manning.

[4] For instance, in 2012, Brian Donlon, a social studies teacher at Richard Montgomery High School (Rockville, MD), complained that the school was manipulating AP scores.  The school did not investigate but retaliated against him, he felt.  Five years later, the Maryland Court of Special Appeals decided that the state’s extensive oversight of the school didn’t count toward making him a state employee.  As a result, he deserved no whistleblower protection.

Following a 20+ year military career, in 2012 Steven Kalch was hired by Raytheon to work in Afghanistan on a military contract.  He soon noticed that Raytheon employees were not working the hours charged to the government.  He complained.  A lot, apparently.  Raytheon people called him rude and said he created a hostile environment.  He was fired in January 2014.  The U.S. District Court ruled this month that Kalch had not proven that Raytheon did not perform per its government contracts.  No protection.

The Mystery of Whistleblowing

The Mystery of Whistleblowing

Whistleblowing seems to me a curious subject.  The primary mystery is figuring who will become a whistleblower.  Marcia P. Miceli, a professor at Georgetown University, has written and co-authored research since 1982 on whistleblowing and who is likely to become a whistleblower.  She and others[1] have considered many possible reasons for the decision to turn against the organization.

Personal qualities – like gender, age, extroversion, religious fervor – do not provide convincing explanations why people become whistleblowers.  Situational factors – such as job, organization size and culture, industry – do not predict well.  A core puzzle: why do some disclose wrongdoing while others with the same opportunity stay silent?  At HomeFirst, I revealed possible misdeeds, but the Chief Program Officer, Chief Development Officer, several Program Managers, and members of the Board stood quietly while I was fired for it.

We feel good about whistleblowers when we witness their moral courage.  So brave, they speak truth to power.  The organizations, of course, call them traitors, poor performers, and problem cases.  But when we read their claims about the resistors, our confident admiration can soften.  The whistleblower, who is accused of tasering his girlfriend, brutality, stealing from a client, biting police officers, or making a racist Facebook post, may not be the moral hero we would imitate.

James Damore published a memo baring Google’s liberal biases.  He disagreed that gender gaps in pay and power necessarily imply sexism.  Biological differences to help explain unequal rewards for men and women in the technology industry, he said.  This wins him praise from alt-right voices and criticism from those who have experienced the sexual bias that Damore dismisses as natural. 

Damore insists that his paper was a protected discussion of workplace conditions: he is a whistleblower.  Goggle contends that he violated Google policies and it had every right to fire him as an at-will employee.  It is the familiar whistleblower-company debate.  But mixed with more than the usual moral ambiguity.  So ambiguous that whistleblower Damore takes a position precisely opposite that of whistleblower Ellen Pao.  Pao won praise for calling out sexual discrimination at the powerful Silicon Valley law firm Kleiner Perkins.  Still she lost her lawsuit against the firm.

Interior Department scientist Joel Clement was reassigned to an accounting department job because the Trump administration rejects his research findings on global warming.  Clement expands whistleblowing in a new direction.  His environmental stance is far from uniquely courageous.  Instead Clement joins a majority of Americans and most world leaders in believing that the climate is changing.

In the early days of whistleblowing[2], the misdeeds we disclosed were impressive and we were noble.  Today the whistleblower umbrella is open wide.  It covers employees who do their jobs and those who bear a grudge.  The moral and immoral are included.  Those who fight for public good and those who rationalize private benefit are embraced.  We praise individuals who stand alone and those who join with millions to voice their concerns. 

Whistleblowing is speech that happens to offend someone in an organization.  It’s natural, and it should be unexceptional.

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[1] For example, Avakian, Stephanos/Joanne Roberts (2012); Bocchiaro, Piero/Philip G. Zimbardo/Paul A.M. Van Lange (2012); Cassematis, P. G./R. Wortley (2013); Comer, Debra R./Gina Vega (2011); Henik, Erika Gail (2008); Gundlach, Michael J., Mark J. Martinko, Scott C. Douglas (2008);  Hollings, James (2013); Keil, Mark/Amrit Tiwana/Robert Sainsbury/Sweta Sneha (2010); Mesmer-Magnus, Jessica R./Chockalingam Viswesvaran (2005); and Vadera, Abhijeet K./Ruth V. Aguilar/Brianna B. Caza (2009)

[2] Cf. Nader, Ralph, Peter J. Petkas, and Kate Blackwell (eds.) Whistle Blowing: The Report of the Conference on Professional Responsibility. New York: Grossman Publishers. 1972

The Whistleblower and Ethical Order

The Whistleblower and Ethical Order

When I began my whistleblowing, I envisioned a world of right and wrong.  An order I could rely on.  I expected that I would disclose a misdeed and it would be corrected.  I thought that the board of directors would enforce company policies to protect me from retaliation.  I assumed that the government would follow its rules and defend me after the retaliation. 

That view of the world is shared by others.  They applaud us as prosocial and solvers of organizational problems, who resist evil.  On National Whistleblower Day, Senator Chuck Grassley praised whistleblowers as patriots and heroes.  It’s an attractive way to see things.  We have a good guy up against a bad guy.  We encourage good guys to speak up, protecting them from harm when they do.  In the end, the good guy wins, either outright or in our hearts. 

Sometimes life goes in that satisfying fashion.  Jacquelyn Ferentz joined the police department of tiny West Wildwood, New Jersey in 2001.  When her boss took a leave of absence in 2008, he named her acting police chief.  Then things got interesting.  In May, a borough election brought in Herbert Frederick as mayor, replacing Christopher Fox (who shared a house, but no romantic relationship, with Ferentz).  Ferentz and Fox signed petitions to recall Frederick. 

Mayor Frederick began interfering in police affairs and went afoul of the law, Ferentz thought.  Frederick said that Ferentz violated various laws herself and suspended her without pay in March 2009.  She was subsequently reinstated but not before she lost her home to foreclosure.  Ferentz sued the borough and Frederick.  Fredrick avoided conviction for wrongdoing but did not seek re-election.  Ferentz remains police chief in West Wildwood, and Fox is back as mayor.  And last month, a jury awarded her $1.165 million for economic loss and emotional harm.

Ferentz won out because her community endorsed a system of right and wrong – and she was in the right.  Other whistleblowers[1] have not been so fortunate.  Joel Clement was director of the Office of Policy Analysis at the U.S. Department of Interior.  He argued that science should inform government environmental management and guide Department of the Interior practices.  His scientific research emphasized the catastrophic effects of global warming on arctic populations. 

President Donald Trump and Interior Secretary Ryan Zinke disagreed with his conclusions.  In June Zinke announced that about 50 Department employees would be reassigned.  Clement’s new job is in accounting – a senior advisor for the Office of Natural Resources Revenue.  He complained to the U.S. Office of Special Counsel that the Trump administration retaliated against him for raising awareness of the dangers of climate change.

Despite the findings of scientists like Clement, a significant portion of the voting public – and the administration they elected – thinks Clement’s environmental views are a political, not ethical, challenge.  For them, he argued in favor of an uncertain understanding and ignored the real economic damage from environmental protection.  For them he was not pro-social or a problem solver; his candidate lost the election is all.  He hardly qualified as a whistleblower.

Most organizations claim their dissidents are not whistleblowers.  They are disgruntled employees.  Poor performers.  Or, as HomeFirst labelled me, problem creators, not problem solvers.  Whistleblowers overvalue ethical order, making them headaches for managers like HomeFirst’s CEO.

When judgments go against us, we whistleblowers may not be sure if the community or just some rogue bureaucrat made the decision.  Clement spoke out through the Washington Post and other media after a line of powerful authorities opposed him.  Most of us, though, are turned aside by organizational minions. 

When the Department of Justice attorney told me that they did not like to hurt organizations that do good, as she supposed HomeFirst did, I could not be sure if she spoke for our federal government.  I only knew that my complaint about bid collusion had petered out.  Investigations of HomeFirst’s federal and county government overbillings drag on for years.  Other complaints[2] were simply ignored.

Arbiters of right and wrong seldom emerge in whistleblower cases.  Power – generally bureaucratic power – more often prevails.  It is an ultimately unsatisfying business we are in, whether we win or lose.

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[1] Including 75% of those who appeal for help from California’s Department of Industrial Relations.

[2] For example, on master leasing violations, City of San Jose advance, EHAP loan violation, and payroll violations.