Whistleblowers: Consequences of doing the right thing

Whistleblowers: Consequences of doing the right thing
By
Jose Gonzalez

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Dr. Aaron Bazzoli

Park University
MG 260

29 September 2013

Outline
Purpose Statement: To provide an understanding what constitutes whistleblowing in an organization, what are some of the laws that protect whistleblowers, and provide several examples of employees blowing the whistle and their consequences? I. What constitutes a whistleblowing in an organization?

A. Origin and Definition
B. Internal and External
II. What are some of the laws that protect whistleblowers?
A. False Claim Act
B. Dodd-Frank Act
C. Whistleblower Protection Enhancement Act
III. What are several examples of employees blowing the whistle and their consequences? A. Ted Siska 2012
B. David P. Weber 2013
C. Edward Snowden 2013
IV. Conclusion

Whistleblowers: Consequences of doing the right thing
“To see a wrong and not to expose it – is to become a silent partner to its continuance.”
-Dr. John Raymond Baker
The term “whistleblower” began to be used in a way significant to science, technology, and ethics in the 1960s and U.S. civic activist Ralph Nader coined the phrase in the early 1970s to avoid the negative connotations found in other words such as "informers" and "snitches" (Nader, Petkas, Blackwell, 1972). Duschinski, (2013), in an article called, “Whistleblowers Who Shaped Modern U.S. History” stated, “transpose friends with employers or government, and you have what we today term a “whistleblower”, individuals compelled by conviction, perhaps, or possibly treasure-seeking publicity hounds? Time tells”. However, in order to have a fundamental understanding of what is a whistleblower, one must understand what constitutes whistleblowing in an organization, what are some of the laws that protect whistleblowers, what are several examples of employees blowing the whistle, and their consequences.

To get a better understanding what constitutes whistleblowing in an organization, let’s take a look at what is the origin and definition of whistleblowing, as well as what an internal and external whistleblower is. The origin of the term “whistleblowing” is unclear, but some say it may refer to “English policemen blowing whistles to alert others of danger and illegal acts or to a sport referee stopping a game due an illegal or foul play” . Then, it is no surprise that according to an article from the Government Accountability Project, “What is a Whistleblower?” (2013) defined whistleblowing as the “act of an employee(s) (former or current) in a government agency or private sector disclosing information to the public or those in authority what they believe is evidence of illegality, gross waste or fraud, mismanagement, abuse of power, general wrongdoing, or a substantial and specific danger to public health and safety”. In other words, whistleblowing constitutes a former or current employee (the whistleblower) revealing to the public or to those in authority, of mismanagement, corruption, illegality, or some other wrongdoing an organization they work for. The question then one must ask is, what does revealing to the public or those in authority mean?

Luegenbiehl (2005) in an article from the Encyclopedia of Science,
Technology and Ethics called “Whistleblowing” contends that “it is possible to distinguish between internal (those in authority) and external (public) whistleblowing. Internal whistleblowing occurs when the hierarchical chain of command within an organization is violated, so that one's immediate superiors are bypassed, perhaps because they have refused to act or they are directly involved in the wrongdoing. External whistleblowing refers to going outside the organization, possibly to a regulatory agency, the press, or directly to the public”). Now that we have a better understanding what constitutes whistleblowing, let’s take a look at some of the laws that protect whistleblowers.

According to “The Whistleblower’s Handbook: A Step-By-Step to Doing What’s Right and Protecting Yourself”, the author states that “At last count over fifty-five different federal laws protect the majority of whistleblowers from retaliation. From truck drivers to airline pilots and from pipeline operators to corporate managers…law applies to all employees” (Kohn, 2011). We know there are way too many laws to cover; however, we will discuss several, the False Claim Act, Dodd-Frank Act and the Whistleblower Protection Enhancement Act (WEPA). These three laws in my opinion have been significant in the protection of whistleblowers.

The False Claim Act can be traced back to the civil war, President Lincoln and Congress supporters were disgusted with government contractors who were profiting from the war by selling sawdust in place of gunpowder. Congress investigations of some of these frauds uncovered “waste and squandering” of public funds. Congress also discovered that the employees who had “blown the whistle” were subjected to retaliation. Kohn (2011) pointed out that this law was originally signed by President Lincoln in 1863, with the understanding “that no one without a “reward” could realistically be expected to risk retaliation and retribution that usually face employees who turn in their bosses”. However, it wasn’t until 1986 when Congress added an anti-retaliation protection amendment to the existing False Claims Act, that actual retaliation protection was assured. Under this amendment, Behn and Wyetzner (2013) claimed “the employee should not be discharged, denoted, suspended, threatened or harassed in any form that discriminates the terms
and conditions of his employment because of the legal act done by the employee”. Who could have imagined the impact of this law? In 2010 alone, “whistleblowers would force corporations around the world to pay back $2.39 billion in ill-gotten gains and award whistleblowers $357 million in rewards” . Nonetheless, this was only the beginning; new laws would take whistleblower protection to a new level.

Due to years without culpability or oversight for Wall Street, big banks brought us the nastiest financial crisis since the Great Depression, the loss of millions of jobs, failed commerce, a dip in housing prices, and the decrease of personal savings cause Congress and the President to act. In 2010, Congress passed and President signed the Dodd-Frank Act, which was a game changer for whistleblower protections. Kohn (2011) stated “the act contains major whistleblower laws, covering much of the private-sector economy, including two distinct monetary incentive provisions, enabling employees to obtain financial rewards for reporting corrupt corporate practices”. The author continued to address how the act created three new anti-retaliation laws, protecting employees who expose fraud in commodities trading, securities trading and financial consumer fraud. The act also amended the Sarbanes-Oxley Act which guarantees whistleblowers the right to a jury trial and expands corporate coverage. These laws unfortunately, have not completely stopped fraud to continue in government, private or corporate sectors.

The increase in government fraud and the diminishing protection against whistleblowers, largely as result from a string of decisions by the Court of Appeals for the Federal Circuit, again cause Congress and the President to make many revisions to the Whistleblower Protection Act of 1989 (WPA). The new law became the Whistleblower Protection Enhancement Act (WPEA), which now protects the rights of millions of federal workers to report government corruption and wrongdoing with employer retaliation. According to an article from the Government Accountability Project called “Whistleblower Protection Enhancement Act” (2013) stated that “the WPEA makes federal whistleblower rights stronger that at any time in history, lapping those created by the WPA. This update is long overdue, as WPA protections were very weak. The WPA was a landmark good government law with the mandate to protect federal employees who report waste, fraud and abuse. Over the past two decades, the WPA has fallen victim to hostile judicial activism”. We have seen that as early as the civil war to current times, Congress and the President making numerous changes to protect and encourage whistleblowers against employers who would consider retribution or retaliation. The vast majority of all whistleblowers’ laws, including the three discussed, legally protect the whistleblower from reprisal or retaliation, such as termination, suspension, demotion, threats and/or harassments. Let us now take a look at some examples of some employees who have blown the whistle and their consequences.

We all have seen the scandals on television and in the newspapers of big corporations swindling millions of dollars from investors, and the government or how the National Security Agency is supposedly illegally spying on Americans. Have you ever wondered how the public or the organization’s higher authority got wind of it? It was because an employee blew the whistle, either to warn the public of the disaster or hold their bosses accountable for their misconduct. We will discuss three recent examples of whistleblowers found to be very interesting; their names are Ted Siska, David P. Weber and Edward Snowden.

Ted Siska an employee for the New York Ward Diesel Filter Systems, Inc., a company under contract that provided the diesel exhaust filtering systems for fire engine to the Department of the Army, Department of the Navy, Department of Interior, as well as the Air Force, Marine Corps and Department of Energy, blew the whistle by alleging and accusing his employers of knowingly submitting false claims. The Justice Department joined suit and confirmed Siska’s allegation and Ward Diesel Filter Systems, Inc., agreed to pay the United States $628,000 to settle case. According to the United States Department of Justice (Office of Public Affairs, 2012), stated “the government’s investigation of Ward Diesel was initiated by a lawsuit, U.S. ex rel. Siska v. Ward Diesel Filter Systems, Inc., filed under the False Claims Act’s whistleblower provisions, which permit private parties to sue for false claims on behalf of the United States and to share in any recovery…Ted Siska, will receive $94,200 of the settlement.” Ted
Siska unafraid of retribution or retaliation blew the whistle on his employer’s fraudulent activities and saved thousands of dollars of taxpayers’ money.

Unlike Siska, David P. Weber was a different type of whistleblower, a former Assistant Inspector General for Investigations at the U.S. Securities and Exchange Commission (SEC), filed a lawsuit against the SEC claiming he was fired for trying to blow the whistle on possible misconduct in the SEC. The mission of the SEC is to protect investors, maintain fair, orderly, and efficient markets, and facilitate capital formation. Weber reported numerous allegations of misconduct, including that the former Inspector General David Kotz had inappropriate personal relationships with people that may have tainted his investigations into the SEC's handling of the Bernard Madoff and Allen Stanford Ponzi schemes. In a Reuters’ news article, Weber’s lawyer Cary Hansel argued, “The SEC's job is also to protect Wall Street whistleblowers and investigate the misconduct they report. When Mr. Weber blew the whistle on wrongdoing in the SEC's own ranks, the SEC engaged in a retaliatory cover up”. In an independent review by the Postal Service Inspector General’s office substantiated some Weber’s allegation. Sarah N. Lynch (2013) reported that the Postal Service Inspector General’s investigation “found that Kotz may have had conflicts of interest surrounding several key investigations under his watch, including relationships with people connected to subjects he was investigating”. After the finding were substantiated the SEC settled with Weber, his whistleblower protection, and U.S. District Court lawsuits by rescinding his termination, reinstating him and paying him $580,000, The Wall Street Journal in an article called “Accord Reached Over SEC Firing” reported that Weber’s settlement was one of the largest federal whistleblower settlements in US history . In this case, the Dodd-Frank Act protected Weber from retribution while rewarding him for reporting corruption in the corporate sector.

However, there are times when an employee blowing the whistle can become the subject of controversy all over the world. This is what is currently happening to Edward Snowden, a supposed whistleblower, traitor, dissident, and/or patriot. The Washington Post (2013) reported Snowden had worked as a contractor for National Security Agency (NSA) and for the Central Intelligence Agency (CIA) as a computer specialist. It was also reported that Snowden provided classified documents to reporters with The Guardian (2013) and The Washington Post (2013), revealing two extensive U.S. surveillance programs by the NSA. One of the programs gathers hundreds of millions of U.S. phone records, while supposedly searching for possible links to known terrorist targets abroad. Intelligence officials admitted the use of this program, which likely covers all U.S. carriers. The second program allows the NSA to tap into nine U.S. Internet companies, gathering all Internet usage to identify suspicious behavior. These secret programs were established after the 911 terrorist attacks to try and prevent further terrorist acts from ever happening. Now that these programs were made public, many in the government felt that America would be vulnerable and instead of calling Snowden a whistleblower started calling him a traitor, others, called him a hero.

In an interview, Snowden told The Washington Post (2013), that he could not “recall a single moment” in which his desire to violate his oath to protect top-secret information coalesced into the final decision to reveal that information publicly. However, on June 14, 2013, it was reported by the Washington Post (2013) that the United States Federal prosecution filed criminal complaint against Snowden, accused of espionage for leaking documents about the secret NSA surveillance program. Snowden left the United States in fear of persecution and prosecution; if extradited and found guilty he would be facing many years in jail. Snowden believed the government was taking advantage of the American people, he in turn blew the whistle, but as we have seen blowing the whistle comes with consequences, some good, some bad for the individual.

We have seen from the above cases that consequences for blowing the whistle can both be good or bad. I tried doing this by showing what constitutes a whistleblowing in an organization, providing example of laws that protect whistleblowers, as well discussing of several employees that blew the whistle on their organization and the consequences that came with their decision to blow the whistle. A person can save the government or a company money and be compensated for doing the right thing. On the other hand, even
though a whistleblower believes they are doing the right thing, doesn’t necessary mean the law or the public, for that matter, will embrace their whistleblowing. This leads us to back to the beginning, what are consequences for doing the right thing? Well, it all depends on the situation, the law, who is helping, who it is hurting, it is for the good of the public or for personal gains. All these factors are looked by the public and law enforcement officials. There are many beliefs and opinions on what a whistleblower is, but one thing that we can all agree on, the public, the people, should always be told the truth about the corruption that goes around in the corporate and government sectors. We will all be better for it.

References
Affairs, O. O. (2012, June 20). New York-based GSA Contractor Ward Diesel Filter Systems Pays US $628,000 to Resolve False Claims Act Liability. Retrieved September 20, 2013, from U.S. Department of Justice: http://www.justice.gov/opa/pr/2012/June/12-civ-809.html Duschinski, T. (2013, September 17). Whistleblowers Who Shaped Modern U.S. History. Retrieved September 18, 2103, from Ordinary Times on politics and culture: http://ordinary-gentlemen.com/blog/2013/09/17/whistleblowers-who-shaped-modern-u-s-history Holzer, J. (2013, June 10). Accord Reached Over SEC Firing. Retrieved September 22, 2013, from Wall Street Journal: http://online.wsj.com/article/SB10001424127887323949904578536001278977258.html?mod=WSJ_hp_LEFTWhatsNewsCollection Kohn, S. M. (2011). The Whistleblower’s Handbook: A Step-By-Step to Doing What’s Right and Protecting Yourself. Guilford: Globe Pequot Press. Luegenbiehl, H. C. (2005). Whistleblowing. (C. Mitcham, Ed.) Encyclopedia of Science, Technology, and Ethics, 4, pp. 2062-2064. doi:Retrieved from http://go.galegroup.com.pegleg.park.edu/ps/start.do?p=GVRL&u=park19302 Lynch, S. N. (2013, June 10). Ex-SEC investigator settles whistleblower retaliation lawsuit. Retrieved September 22, 2013, from REUTERS: http://www.reuters.com/article/2013/06/10/us-sec-whistleblower-weber-idUSBRE9590R920130610 MacAskill, G. G. (2013, June 6). NSA Prism program taps in to user data of Apple, Google and others. Retrieved September 22, 2013, from The Guardian: http://www.theguardian.com/world/2013/jun/06/us-tech-giants-nsa-data Markon,

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