Life after Whistleblowing

Life after Whistleblowing

Wells Fargo Bank’s phony customer accounts trouble started back in 2005.  That was when Julie Tishkoff started to complain internally about the bank’s improper procedures.  Fired in 2009, she appealed to the U.S. Department of Labor.  DoL ruled against her so she sued the bank in 2011.  The bank replied vigorously.  Discussion of her case stopped short in 2012 when she accepted $200,000 to settle her wrongful termination suit.  These settlements typically come with nondisclosure clauses.  So her difficulties after Wells Fargo fired her didn’t come to light until she had tax problems involving the payment.

Yesenia Guitron did not go so quietly.

Wells Fargo hired Guitron as a personal banker in March 2008.  Personal bankers’ compensation was driven by daily quotas particularly for new accounts – the bank inspired its employee misconduct.  Two months later she noticed that another personal banker, Corina Zavaleta, was opening and closing accounts without the customers’ permission.  She criticized Zavaleta’s behavior for months.  In August 2009, Guitron received a negative performance review, and in November Zavaleta was selected to be Employee of the Month at the St. Helena (California) branch.  The following January Guitron was dismissed for insubordination or put on leave – the story is unclear.  In any event she was fired in February 2010.

Then began Guitron’s legal fight against the bank.  Wells’ first reply to her complaint denied most of her claims and listed eighteen additional defenses.  Their scuffle went on for another five years before the U.S. Court of Appeals refused her in 2018.

Guitron’s story might have died away quietly if her attorney, Peretz & Associates, had been as faint-hearted as mine was against HomeFirst.  Or if she had settled as Tishkoff did.  She could have been silenced by a non-disclosure/non-disparagement clause like the one HomeFirst proposed to me. 

We might have lost interest in her story if Wells Fargo had been a small-time wrongdoer like HomeFirst.  Or if it had not persisted in its wrongdoing and its retaliations against employees who resisted.  Instead, it went on until 3.4 million false accounts were created.  It went on until it fired at least 5,300 employees who were involved.  Until hundreds of whistleblower complaints were made about its sales tactics.  Until it was fined $185 million and repaid customers more than $140 million.  And still the bank did more bad stuff.  Its mortgage loan fraud, for example.

Guitron spoke out in her legal filings.  She also went on CBS News.  She appeared in the New York Times, the local press, and banking media.  She was subpoenaed by the Department of Justice in its Wells Fargo probe.  She still wins an occasional award for her whistleblowing.

Her story not only persisted but it grew in value because she continued her life after her battle with Wells Fargo.  No longer in banking, she has worked in property management for the past several years.  She raises her children.  Last year she got married.  The loss of her whistleblower case did nothing to end her life.

Whistleblowing is often described as a personal disaster for those who speak out[1].  Hoped-for financial rewards[2] are seldom received, and comfort from our moral purity can be paltry.  Our heroes risk, and sometimes suffer, jail time, and others must live in exile.

This storyline is outdated because whistleblowing has been democratized.  The number of whistleblowers increased as legal and social boundaries multiplied.  In a world crowded with self-concerned people, we are more likely to step on others’ toes.  When more corporations perform the work of government, more rules are written and violated.  Misdeeds are quotidian, so we need to abandon the idea our adventures are uniquely heroic.

Not only should our dissent be commonplace, we should expect retaliation, however wrong, to be routine as well.  We must plan to minimize the personal effects of retaliation and to live afterward.

Guitron’s life is different from what it might have been if she had not testified against Wells Fargo.  But she demonstrates that those who call out wrongs can survive.  Less dramatically, I survived my own whistleblowing at HomeFirst.  Like Guitron, I suppose, and most whistleblowers described by Alford[3], I suffered various retaliations though surely less severe than others’.  My life changed after whistleblowing as all lives change.

Companies defend themselves by asserting we are not really whistleblowers[4].  We are just disgruntled, poor performing employees, they say, or not employees at all.  They lie, of course.  But we are not whistleblowers in the old-fashioned sense.  We are everyday whistleblowers who must go on after this particular adventure has ended.

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[1] For example, Alford, C. Fred. Whistleblowers: Broken Lives and Organizational Power. Ithaca, NY: Cornell University. 2001

[2] See Kohn, Stephen Martin.  The New Whistleblower’s Handbook.  Guilford, CT.  2017, and my earlier comment

[3] Alford, ibid.

[4] See, for example, HomeFirst’s response to my complaint.

Losing and Winning

Losing and Winning

Imogene Redwine was hired as a special education teacher in the Atlanta Public Schools in 2001.  This was a few years before the Atlanta schools cheating on CRCT[1] assessment tests came to light.  She had a hand in disclosing the scandal, and then she lost.

In 2007 Donell Underdue moved from Connally Elementary to be principal at Brown Middle School where Redwine taught.  Underdue was soon making comments that Redwine read as encouraging teachers to cheat on the tests[2].  The next year Redwine talked about the CRCT pressure to a former Brown Middle School principal and a news investigator.  When Underdue found out, he reassigned her.  She filed a grievance.  She received a poor evaluation because her CRCT scores were not high enough.  Underdue put her on a performance development plan.  She filed another grievance.  She complained to Underdue’s boss about cheating.  She was accused of threatening the assistant principal, which she denied doing.

In 2009 Redwine took FLMA time off for health problems.  Her union told her school officials seemed to be planning to fire her.  When she returned, Underdue assigned her to teach math despite her limited experience in that area.  She objected and filed a grievance.  The following year Underdue gave her a performance evaluation that threatened her teacher’s license.

In 2011 as the State investigated reports of cheating on the 2009 CRCT tests, Underdue was promoted to Executive Director of Schools.  The next year Redwine testified for the prosecution before the grand jury that considered the cheating.  A week later the school system’s legal office said her contract would not be renewed for the following year.  The union intervened, and she received one more renewal.  Then she was out at the end of the 2013-14 school year.

She sued the Atlanta school system, and three years later a jury decided to believe that she had been fired because of her poor performance.  Her whistleblowing and support of investigators were not the cause at all.  After ten years of fighting – including three years in court – she lost.  If my attorney agreement is any indication, Redwine still paid for mediators, court fees, and other costs even if her attoney worked on a contingency fee.  After being fire, she needed months to find even a lower paying job.  Now 62, she will never fully recover financially from her project.

Weak evidence of crime may have contributed to her loss.  She spoke out about cheating, but the problems at Brown Middle School were not as bad as elsewhere in the 2009 testing.  Although she heard about meetings at Underdue’s home to fix tests, she did not witness the cheating.  Underdue skated from one job to another higher up in Atlanta, then Chicago and now Florida. 

But, as in most states, Georgia law doesn’t demand the alleged crime be proven.  Those who retaliate, though, like to claim their accusers had things wrong.  HomeFirst did that in its defense against my complaint.

Unlike the losers, those who win can feel society backs them.  Even if the award is smaller than it should be and you must share it with attorneys, it is easier to feel vindicated when you win.

For those, like Redwine and me, who win nothing, loss can tempt us to regret we ever became whistleblowers.  Dan Bethards lost after he blew a whistle on illegal gun sales by his boss in the Wisconsin Department of Justice.  He lost his job and his house. He lost his case before of the state Court of Appeals.  Given the choice again, he would not blow the whistle, he says.  The organization is just too powerful.

Many whistleblowers who are fired by large organizations engage attorneys.  The attorneys deal with the organization’s lawyers.  Settlement offers are solicited.  Money is offered in exchange for silence.  HomeFirst offered an agreement to me.  I’d be surprised if Atlanta schools didn’t offer one to Redwine to avoid years of legal expenses. 

Whether or not she was offered a settlement, Redwine went the lawsuit route believing she had a case.  My attorney told me I had a case too.  But I didn’t try suing after the settlement disgusted me and the State of California disappointed me.  We make our choices.  Maybe Redwine was more of a fighter than I was.

We whistleblowers also make choices earlier in the game.  We recognize that the organizations we work for are dicey.  They cheat and lie to others, but they pay well.  Well enough, it seems, as long as it lasts.  The thousands of Wells Fargo bankers – and hundreds of whistleblowers – who witnessed the creation of fraudulent customer accounts were well paid.  That’s why they worked at Wells rather than someplace else. 

In 2007 Redwine sensed the corruption of Atlanta Public Schools, but she stayed for the pretty decent salary.  I knew years before I was fired that HomeFirst was ethically sketchy and refused to honestly report its effectiveness.  I knew its CEO was inept and arguably an idiot.  But I stayed because the salary was good enough.

When we see a whistleblower lose, it’s easy to find unfairness in the situation.  Redwine’s courage brought her legal costs, lost wages and emotional stress.  But she also took in several years of income from an organization she knew was corrupt and was targeting her.  I did the same at HomeFirst as did those Wells Fargo bankers.

Organizations like Atlanta public schools, Wisconsin Department of Justice, Wells Fargo, and HomeFirst are guilty of unjust use of power.  But we are not mindless victims.

We won for a while.  Many of us for years.  Then we lost the bets we made.  Weep for us only a little.  Pity more those who never object at all.

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[1] Criterion-Referenced Competency Test given to all public school students in Georgia.  The test was used to measure schools’ academic progress as required by the federal No Child Left Behind Act.

[2] By erasing incorrect responses and marking the correct answers.  State investigators would identify cheaters through erasure analyses that exposed the basis for significant improvements in school-wide scores.

Employing Potential Whistleblowers

Employing Potential Whistleblowers

Tricia Mullins took a risk when she joined Aegerion, a biopharmaceutical company, in September 2012.  Its only product, Juxtapid, would not get FDA approval until December.  It had had no revenue and $60 million a year in expenses.  It stayed afloat only by issuing debt and equity securities, and its ability to do that depended on Juxtapid’s prospects.  At $311,000 a year per patient, the drug could turn the business around.  Mullins’ job was to find customers in New York City.

Unfortunately the market for Juxtapid was extremely limited[1].  If the company was to survive, the drug had to be sold for “off-label” purposes – patient uses not approved by the FDA.  There are legal problems with doing that, though.

By March 2013 Mullins was butting heads with her boss who set sales goals that were impossible to meet within the law.  At a sales meeting in April it was clear her peers were making their goals with off-label sales.  She spoke out against the illegal practice.  One week later she was told her sales performance was disappointing.  In June her boss told her again.  She complained to the CEO in July.  He didn’t reply. 

At the end of July Mullins and two other sales reps filed a false claims suit against Aegerion because many off-label customers were on Medicare.  Mullins was stressed and went out on medical leave.  Aegerion said she abandoned her job.  It stopped paying her and cut off her emails and other communications. 

In April 2014 Mullins started a new job, in patient advocacy not sales.  She got on with life.  Her lawsuit continued for another three plus years.  Then it succeeded in a big way.  Aegerion agreed to pay $35 million to settle criminal charges and false claims allegations.  Mullins and her co-relators were awarded $4.7 million. 

It seemed like a happy ending to a whistleblower’s story.  Mullins observed wrongdoing.  She was offended and spoke up, trying to change corporate misbehavior.  She suffered retaliation, but stood up again.  As Stephen M. Kohn’s The New Whistleblower’s Handbook promised, she emerged victorious.

This telling simplifies some elements of her story.  She knew what she was getting into when she joined Aegerion.  The company needed to push edges of the envelope, or it was dead.  She was in the thick of things as sales rep for a new product that had to move.  And she was no naïf.  She’d worked for 6 biotech companies before Aegerion.  Still, her awareness did nothing to reduce the company’s culpability.  The story turned out as it was supposed to.

When the Department of Justice announced its settlement with Aegerion in September 2017, it named Mullins as one of the whistleblowers.  Her 23-year career to that point included jobs at ten companies.  Loyalty was not an obvious strength, but public fame at whistleblowing marked her as a potentially dangerous employee.

To protect her position at her new employer, Horizon Pharma, her attorney sent the company a letter.  He enclosed DoJ’s news release and reminded them they would be sued if they retaliated against her in violation of the False Claims Act.  In December the company fired her supposedly for violating confidentiality rules.  As promised, her attorney filed suit against Horizon Pharma.

Whistleblowers are often morally ambiguous characters.  We often suspect we are joining up with scumbags before we dream of whistleblowing.  We squeeze out enough personal benefit even if they are scum.  In one big-time case, Sherron Watkins surely was aware of Enron’s unethical culture[2] before she discovered its accounting fraud.  She was paid well, but Enron still did wrong.  Whistleblowers, big-time and small, need jobs.  We put up with imperfection.

Like Mullins, I had worked at enough companies to establish I was not an unreservedly dedicated employee.  Worse, in the view of HomeFirst’s CEO, I had spent most of my time with for-profit companies.  I lacked sufficient passion for HomeFirst’s mission.  We both knew this before my whistleblowing project.

Like Aegerion, HomeFirst operated at the ethical edge almost by necessity.  It had a history of compliance problems.  The $1.2 million HUD overbilling was one.  There was also its 2007 licensing problem[3], well before issues I disclosed.  HomeFirst also had a history of financial challenges beginning before I joined in 2007.   I became its CFO because I thought I could deal with them.  Conditions improved but then worsened again under CEO Jenny Niklaus.  I was aware of all this and, like Mullins, I stayed with the company.  Maybe I thought I could help fix things.  Maybe I decided the job paid well enough and I would retire before anything disastrous happened.  Probably a little like Mullins.

We often bring unhappy conclusions on ourselves.  We could avoid them by leaving earlier, but we stay for reasons often selfish.  And our employers know well in advance of our whistleblowing what could happen.  Signs may be there before we are hired, as they were with Mullins.  They may even plan for it.

It looks like Horizon Pharma didn’t recognize the signs when they hired Mullins.  Her lawsuit will test whether their suspicious claim will win.  HomeFirst’s did against me.

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[1] Juxtapid was approved to treat homozygous familial hypercholestrolemis, a rare lipid disorder inherited from both parents that results in a limited or complete inability to remove low-density lipoprotein from the blood.  Aegerion’s price for the drug, which was taken once a day, was $311,000/year.

[2] Sims, Richard R. and Johannes Brinkmann. “Enron Ethics (Or: Culture Matters More than Codes).”  Journal of Business Ethics 45 (2003): 243-256

[3] EHC LifeBuilders changed its name to HomeFirst Services in 2014.

The Democratization of Whistleblowing

The Democratization of Whistleblowing

When whistleblowing started up in the 1960s/1970s the actors were an elite group.  Back then it was Ralph Nader versus unsafe cars and Karen Silkwood against dangerous nuclear power plants.  The issues were big, and complaining could be dangerous.  They were proper heroes.  But times have changed.

As business worked more with government that lacked resources to keep its partners in check, our value became more obvious.  More laws came to protect whistleblowers against retaliation.  More people concluded they would be protected, and the number of people disclosing wrongs increased rapidly. 

In 2006 the number of corporate whistleblower reports averaged about 8 per thousand employees.  By 2016 the rate had increased some 75% to 14 per thousand employees.  Similarly, complaints to the Department of Labor rose 68% from 2008 to 2017. 

Reporting to federal programs that offer rewards also surged.  Between 2012, its first full program year, and 2017, the SEC saw a nearly 50% increase in tips.  False Claims Act suits are fewer and vary more from year to year.  The average number of new FCA cases in 2012-2016 (812) rose 158% over the 1987-1991 average (312). 

Awareness of and the courage to report acts of sex abuse have grown visibly in recent years.  Although the early focus was on Hollywood nasties, the problem is widespread.  In a national survey 81% of women and 43% of men said they had experienced sexual harassment or assault over their lifetimes. 

As whistleblowing became popular, the range of complaints widened.  They include disclosures of uncertain wrongs along with the flagrant.  Sexual misconduct charges against Harvey Weinstein seem pretty certain.  But those against Aziz Ansari[1], for example, are more controversial.  A mostly media-waged fight set Talia Jane against Yelp Inc.  Jane wrote an open letter to Jeremy Stoppelman, CEO of Yelp whose Yelp24 employed her in customer service.  Jane complained about her low pay.  She was promptly fired although Yelp soon increased salaries for positions like Jane’s.

In most cases the accused proclaim their innocence and dismiss whistleblowers’ complaints as untrue.  That’s what HomeFirst said in defense against my complaint.  And when BP Energy recently settled a False Claims Act suit about overbilling California for natural gas, it asserted it had done nothing wrong.  It agreed to pay the $102 million for the sake of convenience.

As our complaints multiply, they include more small-time cases like mine.  Some address acts that are more strictly moral, like not paying employees enough to satisfy them.  And behavior that may be gross but seems to stop short of illegality. 

Or they attack the organization with conflicting arguments.  On one side stands James Damore.  He was a Google software engineer when he internally published a memo criticizing Google’s culture of political correctness.  He suggested the gender gap in technology companies might result not from biases, but from the generally lower capabilities of women for tech work.  He recommended the company examine its biases in favor of women and diversity in general.  This did not go over well, and he was fired.  He had violated company policy, Google said, when he suggested women have traits that make them less biologically suited to the work.

On the other side stands Tim Chevalier, another former Google engineer.  Chevalier felt the company’s internal social networking programs were used to belittle and harass women, people of color, LGBTQ employees, and other minorities.  Google fired him too for violating its social norms and creating unacceptable stereotypes.

In his lawsuit, Damore offers evidence of Google’s intensely PC culture.  One piece was communication from Chevalier to Damore’s co-plaintiff in the suit.  And Chevalier’s lawsuit refers to grief he got for criticizing Damore’s memo.  These are young men.  So they spent no time on Google’s age discrimination problem.   Their biological and moral arguments might apply equally well to age differences.  What a mess of knitted wrongs and accusations!

A problem with the democratization of whistleblowing stems from the ambiguity of our small-time complaints.  When I asked if HomeFirst was violating state licensing laws, the CEO’s initial concern was not about legality.   She cared first whether obeying the law would limit the number of homeless shelter beds.  When she appealed to the board for support, she blew the whistle on me.  The State’s determination letter agreed with HomeFirst: I was not really a whistleblower.  Instead they had outed me as someone who had hoped to bring the company down.

Debates often focus on whether our complaints are valid.  Did the company intentionally overbill the government?  Did the government really engage in unlawful surveillance of its citizens?  Was a law actually violated, a person harassed, or a lie told?

Justice is likely to be served better if we look to how power is used in these situations.  Power that resides primarily with the accused wrongdoer and is employed to quash the whistleblower.  Blocking its violence can be inconvenient for those used to having their way.  Yelp, Google and HomeFirst hoped to cut off discussion on their terms, and they fired their accusers.  Those accused of sexual harassment or worse too often succeed in switching the conversation.  Their accusers are the guilty ones, they say.

Our battles should not be about one side winning or losing.  Solutions that silence the parties waste an opportunity.  Continuing our discussions is a painful but necessary cost of social life.

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[1] Plus related, impassioned criticism of and support for Jane.

Whistleblowing, Clean and Messy

Whistleblowing, Clean and Messy

In his NY Times column, The Ethicist, Kwame Anthony Appiah responds to ethical questions posed by readers.  In a recent issue, a middle school student asked about becoming a whistleblower.

During a test the student witnessed three fellow students cheating while their teacher was out of the room.  He[1] wanted to be honest but also feared the consequences of reporting the violation – to the three cheaters and his friendship with them.  His school has no official honor code.

This seems to be the typical whistleblower’s dilemma.  An honorable person sees misbehavior and must weigh the personal consequences of disclosing it to authorities against the social benefit produced by disclosure. 

It is the problem cleansed of emotion that academics have addressed for years[2].  Here the individual has time to consider the issues and seek advice from wise people.  The significance of the wrong can be evaluated objectively, which Appiah does.

Appiah, commends the student for his values and suggests that cheaters eventually pay for their dishonesty.  He agrees that the student has no moral obligation to report the incident and the personal effect of reporting could be painful.  He does not point out, but readers understand, the misbehavior is not really egregious.   He may stay silent.  To soothe his conscience, the student could write his principal a letter recommending teachers not leave test sites without monitors.

Appiah might also have counseled me against ratting on HomeFirst.  I might have heeded his caution that the personal ramifications would be significant.  I was probably going to retire about a year after I started pushing the violations I found.  I could have used that time, if I really wanted to file complaints, to gather proof to support my claims.  He might have mentioned HomeFirst’s violations were not time-sensitive and probably not all that significant.  I was, after all, just a small-time whistleblower.

Moral judgments form not in a reasonable head but out of emotion[3].  Likewise, whistleblowing cases are dirtied by emotions on both sides.  If the student had been bullied by the three cheats earlier, he might never have sent Appiah his letter.  He might have decided he’d found the opportunity he was looking for.

Companies usually claim the whistleblower is unclean.  He is disgruntled and sullied by poor performance.  HomeFirst’s response to my complaint also said I wanted to bring the company down by blowing the whistle.  The State’s determination letter accepted HomeFirst’s claim: I did not act based on good faith belief.  I did not perform in the company’s interest.

You can suspect that destructive desire in some big-time whistleblowers.  Sometimes the perceived violation seems so enormous the organization must be torn down before things can be righted.  Enron and WorldCom rightly fell to ashes.  Chelsea Manning and Edward Snowden hoped to upset broad swaths of government.

In my case, and I suspect many others’, what sparked whistleblowing was ire directed not at the company, but at one particular person.  Company misbehavior provided a context, but my whistleblowing would not have happened without that special person.

Jenny Niklaus arrived after we had reduced the number of employees by 40% trying to put HomeFirst on a solid financial footing.  She appeared to be the best of three CEO candidates.  She was bubbly and cried at the plight of homeless people. 

In 2010, Niklaus’ first full year as CEO, HomeFirst lost $1.8 million (before gains on the sale of assets).  I suggested we’d have to trim more expenses, but we didn’t.  It lost $.4 million in 2011, $1.1 million in 2012  and $1.6 million in 2013.  Donor contributions continued to drop.  I said more firmly we needed to cut expenses.  We had nasty exchanges over the 2014 budget when I again recommended cuts without effect.  I said we could run out of cash, but she was unmoved.  A former development director reminded me, she’s an idiot, you know.

I thought I would win as the company’s financial position visibly worsened.  When violations started piling up, I expected I would surely win.  I thought, wrongly, the board would fire her, not me.

Her laziness annoyed me.  She was inept and frustrated me.  She refused to fix anything; she pissed me off.  She inspired my whistleblowing when I witnessed HomeFirst’s violations.  That’s the way I see it.

It’s hard to be sure my sense of how people become whistleblowers – our unhappiness opens us to report misdeeds when we observe them – is generally true.  It seems to describe how Debra Halbrook was launched after she was offended by her boss.

Then there’s Francisco Alsonso, a West Palm Beach (FL) police lieutenant.  He started blowing the whistle after he was reprimanded for not stopping a fellow officer from driving while intoxicated.  Ann Tarafas and Elizabeth Fox worked as paraprofessionals in a financially troubled Pennsylvania charter school.  They didn’t like cuts and reassignments the principal made, so they complained.  Dr. Julian Craig, a former chief medical officer, had a gripe over his pay on the way to testifying to District of Columbia lawmakers about the hospital’s problems.

Ethicists have suggested that whistleblowers should be pure of heart and resist desire for revenge[4].  But employment-at-will ended company loyalty as reason for hesitating to blow the whistle.  Then government-sponsored rewards for reporters quashed assumptions about our pure hearts.

The new world is messy.  We report perceived wrongs with much or little pause.  We blow our whistles on a variety of sites.  Damning documents are uploaded.  Complaints fly over Facebook, blogs, and tweets.  Criticisms posted on Yelp, Trip Advisor, and any number of other media routinely call out our disappointments.

The realm of Appiah’s innocent student is attractive but not easily located.

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[1] The sex of the student was not stated.

[2] See, for example, Hoffman, Michael W. and Mark S. Schwartz.  “The Morality of Whistleblowing: A Commentary on Richard T. De George.”  Journal of Business Ethics 127 (2015):771-781; and Bok, Sisella. “Whistleblowing and Professional Responsibility.” New York University Education Quarterly 11.4 (1980): 2-10

[3] Haidt, Jonathan. “The Emotional Dog and Its Rational Tail: A Social Intuitionist Approach to Moral Judgment.”  Psychological Review 108.4 (2001): 814-834

[4] Bouville, Mathieu.  “Whistle-blowing and morality.”  Journal of Business Ethics.  81.3 (September 2008): 579-585; Hoffman and Schwartz, ibid;  Bok, ibid.

Whistleblowers Become the Accused

Whistleblowers Become the Accused

When we blow the whistle, we expect trouble.  We just don’t know its full extent.

Blowing the whistle usually leads to some form of retaliation.  That’s to be expected.  We broke the group’s rules.  We betrayed our boss or coworkers by exposing someone’s mistake or an outright wrong.  We blew the whistle on our team.

We expect to be shunned.  At times throughout our lives we’ve been rejected when we offended others.  Or we have snubbed another when he annoyed us.

In business it’s natural to make these punishments financial.  By refusing her a promotion, a pay raise or overtime.  By relocating her office.  We can be shocked when positive performance reviews turn negative, but that is a conventional way to send a message.  You don’t belong here.

In some industries the injuries can become physical.  It happens in law enforcement.

We can even expect to be fired.  We are shocked, offended, but not entirely surprised.  Many of us have fired people in the past.  We can’t be naïve.

We know that our boss will not give us a good job reference when we resist company misbehavior.  Some whistleblowers drop the company from their resume and their linkedin page.  That gets tricky when it leads to misstating job histories.  We work around the problem.

Those are all issues we can anticipate because we have worked in organizations for years.  But there are legal troubles we don’t usually anticipate.  They can be nerve wracking and expensive.

Debra Halbrook worked as a legal assistant for a North Carolina district attorney.  The guy was offensive, the way he always carried his Glock and disrespectfully adopted images of her strict Christian faith.  She reported behavior she thought was wrong to State authorities.  The DA fired her.  She sued.  Her attorney went full bore.  He charged him with wrongful termination but also with racketeering offenses, obstruction of justice, civil conspiracy, and more. 

Now the DA has gone after Halbrook and others.  His suit charges Halbrook with racketeering, obstruction of justice, and civil conspiracy.  He also sued her attorney for abuse of process.  Pursuing a whistleblower lawsuit can be expensive, but defending yourself against a rabid former employer involves costs you never imagined.

Others have been sued over their whistleblower claims.  Theodore Schiff won his FCA suit against dermatologist Gary Marder, who settled with the Department of Justice for $18 million.  Marder said he would sue Schiff for things he had said.  MJS and Associates, a health care consulting company, lost $65 million in an FCA suit brought by Matthew Master.  It then sued Master for breach of contract and breach of fiduciary duty, among other things.  Fortunately for Master, a court dismissed the suit.

Sometimes companies sue employees for their whistleblowing actions before they were fired.  Nick Ramler’s former employer claimed he tried to use his evidence of wrongdoing to blackmail his boss into not firing him.  Todd Barretta, chief compliance officer for NJ Transit, was sued for breaching his duty of loyalty to the agency.  Elderick Brass, a former prison guard, was charged with a felony for releasing a video of a guard firing a tear gas canister at an inmate.

Organizations always try to justify firing the employee for reasons unrelated to whistleblowing.  That can protect them from the eventual wrongful termination lawsuit.  And the wrongs they find can prove expensive for the whistleblowers.

Johnny Burris accused JP Morgan of pushing its investment products to customers for whom they were inappropriate.  The bank fired him, and he sued.  As justification, the bank said Burris misused JP Morgan letterhead paper and he failed to execute a customer trade causing the customer to lose $624.  Fighting that charge at FINRA cost him $50,000 plus the $5,000 fine.

Megan Elizabeth NIsewarner called out contract irregularities in her school district among other wrongdoings.  Unfortunately, a search warrant resulted in finding marijuana in her home.  Possession charges were eventually dropped, but the district still used the discovery as reason for firing her.

If the whistleblower loses her suit, losses can mount.    Parsippany (NJ) township charged James Carifi illegally downloaded files he used as evidence of misdeeds.  He had to defend himself against that.  Then when he lost his whistleblower suit, he had to pay the township $164,000 for its legal costs.  Janice Marrin claimed her complaints about lax hospital procedures led to her being fired.  After she lost her lawsuit, she was ordered to pay the hospital’s defense costs.

Organizations like to hold the threat of lawsuits over former employees who might talk about their cases.  HomeFirst proposed a settlement agreement to me that barred me from discussing the settlement or my employment with HomeFirst.  A friend of a friend of mine settled with a large bank that insisted on nondisclosure.  The bank requires annual depositions to make sure she hasn’t discussed it with anyone.  Otherwise she can deal with them in court.

I refused HomeFirst’s settlement, but still it blustered.  When I continued to follow-up on my complaints about its behavior, it sent me a letter threatening legal action.  I did not stop, and I never heard from it again.  The California Bar said the HomeFirst attorney had the right to threaten legal action if I defamed the company.  But, of course, that was not exactly the warning its attorney intended.

Sometimes whistleblowers are burned when they don’t stop.  Blue Shield of California fired Michael Johnson after he complained the nonprofit behaved more like a for-profit company.  Johnson has continued to be publicly vocal.  And he battles Blue Shield’s lawsuit trying to get him to stop revealing what it considers confidential information.

When we start on our whistleblowing ventures, we envision a limited field of action.  We simplify.  We see ourselves as moral champions, not as dissatisfied and a little vengeful.  We ignore the fact that the organization will quite reasonably seek its own revenge against us.  Its attacks will be fueled by resources we cannot always match.  It will attempt further acts we don’t imagine.

Significance in Retrospect

Significance in Retrospect

Jesselyn Radack, joined the Department of Justice after graduating from Yale Law School in 1995.  In 1999 she moved to DoJ’s Professional Responsibility Advisory Office.  She felt forced out of the DoJ in 2002 following her involvement in the government’s interrogation of John Walker Lindh, an American citizen captured with Taliban forces in Afghanistan.  She became a very public whistleblower.

In her telling, the story was straightforward.  She was asked whether Lindh could be interrogated without an attorney being present.  She advised, no, not under U.S. law since his parents had secured an attorney for him.  The FBI went ahead and interrogated him anyway.  Her boss suggested she leave or else.  Lindh’s attorney’s later requested copies of relevant DoJ communications, but DoJ didn’t provide copies of all Radack’s emails, which might have strengthened Lindh’s defense.  Radack, then with a private law firm, leaked her emails to Newsweek, which published them and her name.  For years afterward, the government made Radack’s life a hell of attacks, inconveniences, and legal expenses.

But ambiguities of Radack’s story are as striking as those of most whistleblower cases.  The government debated whether her emails constituted formal advice.  Whether an attorney engaged by Lindh’s parents, unbeknownst to him, was really his attorney.  Whether DoJ intentionally withheld emails from Lindh’s defense.  And whether Radack was really forced out of DoJ.  Government lawyers contended Radack violated attorney-client privilege by disclosing the emails to Newsweek.  They claimed actions against her were justified because she violated her professional ethics.

That the government challenges Radack’s depiction doesn’t make her rendition wrong.  That the government echoes most accused companies by saying Radack misunderstood situation and she misbehaved doesn’t make her telling right either.  We will never get to what is really true in the matter.

The government case against Lindh arguably fell apart.  In 2002 he received a 20-year sentence, not the multiple life sentences initially sought.  That some of the evidence against Lindh was obtained through torture may have been why.  Maybe Radack’s whistleblowing contributed.  Whatever the reason, Lindh retains his faith in global jihad and will be released next year.

It can be hard to see how our whistleblowing had any impact on the situation we wanted to change.  While I was CFO at HomeFirst Services, I suggested we do a better job of reporting results but I got nowhere.  HomeFirst continues that lack of transparency by not publishing its 2017 audit report[1], which shows a $1.4 million loss before noncash activities, until after its big winter contribution season ends.

While CFO I argued unsuccessfully for expense reductions to avoid financial problems.  But annual administrative costs were increased by $1.4 million, and HomeFirst’s June 2017 cash balance wouldn’t cover even one biweekly payroll.

While Compliance Officer, I reported eight legal violations and identified a dozen more.  None resulted in action against HomeFirst or in any meaningful change in its operations.  HomeFirst’s largest financial violation – overbilling HUD by $1.2 million – was mostly forgiven by HUD[2].  The company’s misuse of $138,000 of City of San Jose money was entirely forgiven.

Nothing was accomplished by my whistleblowing.  Nearly everyone else involved has moved on.  Now that the State has rejected my complaint, my footnote to the HomeFirst audit report will vanish.  The entire incident can be forgotten.

America was caught up in post-9/11 frenzy over terrorism, torture of suspected terrorists, and the Bush Administration’s lurch to war in Iraq.  Radack rode a pretty minor misdeed into whistleblower fame.  Her story has been told in Newsweek, The New Yorker, The New York Times, NPR, among many media outlets.   Three years after she was first attacked, she recovered professionally to join the D.C. Bar Legal Ethics Committee.  She went on to serve as director of National Security & Human Rights at Government Accountability Project, where she represented NSA whistleblower Thomas Drake.  She traveled to Moscow to meet with Edward Snowden.  She won awards.

Few whistleblowers win awards, see their stories told in The New Yorker, or mix with big-time whistleblowers.  But, like Radack, the results of their whistleblowing are slight.

This can be true even of big-time whistleblowers.  Daniel Ellsberg, the patriarch of whistleblowers, released the Pentagon Papers in 1971, hoping to stop the war in Vietnam.  Responding to widespread public pressure, the Nixon administration began to draw down troops years before the release, but the war continued for nearly four more years.  Like Radack, Ellsberg is justifiably a whistleblowing celebrity despite doubtful results.

We go through life uncertain of the meaning of our efforts.  We perform jobs, raise families, accumulate some assets, and form friendships.  The significance of any of our accomplishments is open to great doubt, our whistleblowing no less than anything else.

I appreciate the encouragement Radack, Ellsberg, Government Accountability Project, and others give to whistleblowers.  Having hope for a successful outcome can make it easier to undertake a dangerous project.  But I also think that the ability to launch a project we expect will fail can be a valuable life skill.

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[1] The report, issued on October 31, 2017 and available at Federal Audit Clearinghouse, was not available on HomeFirst’s website as of February 5, 2018.

[2] HomeFirst’s 2017 audit report stated that HUD had forgiven about $800,000 of the amount and the balance is payable in three installments beginning in 2018.