February 20, 2014

“David keeps beating Goliath when truth is in the slingshot.” – Part Two of Our Interview with Tom Devine, Legal Director for the Government Accountability Project

GAP

Earlier this month, we brought you the first part of a two-part interview with Tom Devine, Legal Director for the Government Accountability Project.  In that post, we discussed whistleblowers and national security.  In this second part, we explore what it means to be a whistleblower in the 2010s and some pressing issues facing whistleblowers in the years ahead.

Whistleblower Insider:  We’ve focused so far on the anti-retaliation protections, the rules that tell government agencies or employers how to behave and the remedies available if they misbehave.  Another significant issue is the awarding of bounties.  What is your view on these award programs?

Tom Devine:  Probably the first thing to touch on is whistleblowers’ motives.  For some I’m sure the catalyst is thinking of a bounty – but studies show that’s more the exception than the rule.  The primary motive is to make a difference.  Bounties can make the landing a bit softer sometimes, but it is so rare that someone gets a bounty that my first advice to whistleblowers who are interested in that is, if really your goals are financial, you’re better off studying how to do well in the lottery.  Your chances of winning would be about equivalent, and your life won’t be ruined if you fail to cash in.

I also am wary of the bounty programs, because they make whistleblowing vulnerable to the Judas backlash – someone who’s selling out his or her own colleagues or trusted peers for money.  It’s been a real uphill battle; obtaining stronger whistleblower rights has required cultural acceptance for whistleblowers.  These bounty programs can plant the seeds of distrust and work against that cultural acceptance.

“There’s never been a phenomenon like the False Claims Act in terms of fighting corruption.”

So, I’ve had some wariness about them and have mixed feelings.  When I speak on whistleblowing I say there’s no question that America’s most effective anticorruption law is the False Claims Act.  The increases in fraud recoveries from 1985 to 2013 are just mind boggling.  There’s never been a phenomenon like the False Claims Act in terms of fighting corruption.  But, on the other hand, there have only been a few bounties given out by the SEC, and the risks that are incurred when someone files one of those claims are extremely high compared to the chances of getting any compensation, any award.  And in terms of public policy, we’ve been very concerned that besides only a few awards being given, the wrongdoer isn’t identified, and the nature of the fraud isn’t identified.  Whistleblowing is all about exposing abuses of power sustained through secrecy.  It’s transparency, it’s about the public’s right to know, and the SEC is a whole government agency whose mission is the shareholder’s right to know, yet they’re working with whistleblowers to have secret victories against secret criminals who engaged in secret crimes.  It makes a caricature of the whole phenomenon.  It’s one of our upcoming goals – to try to get some transparency back into the SEC bounty program.

Whistleblower Insider:  Didn’t the SEC always keep their investigations quiet until they reached a settlement?

Tom Devine:  But now they keep them secret even after they’ve reached settlements. Under Dodd-Frank, there’s no transparency except the amount of money the whistleblower receives –

Whistleblower Insider:  You’re not advocating that the identities of whistleblowers be revealed, right?

Tom Devine:  Oh no, not the whistleblowers, unless they want to be publicly identified.

Whistleblower Insider:  So you just want the defendant – the target –

Tom Devine:  The wrongdoer and the nature of their fraud should be put in the public record so that other investors can be on the lookout for those unscrupulous tactics.  When the SEC investigated the Watergate scandal, they named every company making illegal payments to President Nixon’s reelection campaign.  The reports on the nature of the misconduct were all in the public file so you could study and dissect the schemes.  Now this is all secret.  The SEC’s structure for the bounty program is turning the dynamic of whistleblowing into an opportunity for hush-money.

Whistleblower Insider:  What’s the biggest difference in the whistleblower arena that you’ve seen from when you started 30 years ago to today?

“Whistleblowers are making more of a difference than at any time in history.”

Tom Devine:  Well, the tide is turning.  Whistleblowers are making more of a difference than at any time in history, in terms of the volume of their disclosures and quality of their impact.  There also has been an explosion of rights.  Whistleblowers had almost none when I came to GAP.  Now, this is one of the most dynamic areas of law.  And with respect to their identities in society — when I came to GAP, whistleblowers were viewed as traitors or nuts – they’d either stab their buddies in the back or were crazy.  A few were viewed as heroes, or profiles in courage, but that was the rare exception.  Now it’s reversed.  Whistleblowers now are on a cultural pedestal, they’re the heroes of movies routinely.  The weather vane that was probably the wakeup call for me that we were winning the battle for cultural acceptance was a survey by The Democracy Corps in 2006, right after the elections that changed Congress from Republican to Democrat.  They did a survey of the swing voters, people responsible for changing the political landscape, on what their priorities were for the new Congress.  The first priority, by 82%, was to stop illegal government spending.  The second, ahead of the Iraq war, national health insurance and lowering taxes, was stronger protections for whistleblowers – by 78%.

Ironically, there has been an increase in retaliation since the whistleblower laws were passed, but I think it is akin to the increase in racial violence after Brown v. The Board of Education.  There’s sort of an angry resentment. Over time I am very confident will be replaced with a lot more acceptance by employers that whistleblowers should be viewed as an unique, almost indispensible, resource, rather than as a uniquely dangerous threat. If employers wake up to their long-term self interest, whistleblowers can make tremendous contributions towards a better functioning organization, whether in government or the private sector.  Price Waterhouse Coopers did a global survey of multinational corporations, many of which were having serious problems with fraud by corrupt pockets within their organizations.  Those same companies were queried how they dealt with the fraud, and the answer was that more fraud was reported and exposed by whistleblowers than by audit departments, internal compliance departments, and law enforcement combined.  The Association of Certified Fraud Enforcement auditors had a similar study that came to the same results.  These have all been within the last six years.  It’s bad business to kill the messenger.

“Whistleblowers, as a general rule, are motivated by defense of the organizational mission.”

Whistleblower Insider:  Considering most whistleblowers report internally first, their potential benefits seem really underused right now by corporations.

Tom Devine:  Ninety-six percent stay within the organization.  Only 4% of whistleblowers break ranks, and only a small percentage of those go to the media.  Usually if they break ranks it’s to go to law enforcement or Congress.  Whistleblowers, as a general rule, are motivated by defense of the organizational mission and the institution that they fear will be threatened if the mission is betrayed.  These are people who believe in where they work and what they do, and then all of a sudden they stumble into a hidden agenda that’s contradicting the values they’ve lived by, and that’s the recipe for a whistleblowing disclosure.

Whistleblower Insider:  So, what’s next for GAP?   And what are some of the big things on your plate?

Tom Devine:  Well, we’ve got a lot of unfinished business in terms of legal rights.  Some of the hardest issues in the Whistleblower Protection Enhancement Act were tabled for study and will be decided in 2014:  Whether government workers, like corporate whistleblowers, should be entitled to jury trials to defend themselves, and whether government whistleblowers should have normal access to courts of appeal like everyone else.  We’re pushing very hard to restore independent appeal rights for people whose jobs are designated as national security sensitive.  We’re also pushing to close the loophole in whistleblower rights for intelligence community contractors and government employees of the CIA and NSA.  We’re pushing to put whistleblower rights in the USA Freedom Act to establish controls on domestic surveillance.  We’re working on state and local whistleblower laws, too, fighting laws that have made it a crime to expose disgusting, illegal, gory, cruel, inhumane practices at meat slaughtering plants.  We –

Whistleblower Insider:  Are those the so-called Ag-Gag laws?

Tom Devine:  Yes, and we’ve been in the forefront of stopping more of those getting passed and trying to roll them back.  One of our food safety programs is in a pitched battle to stop deregulation of poultry products.  I think we are going to win that one.  And then we are starting to turn to GMOs – genetically modified foods – to get some transparency in food labeling so consumers at least know what they are eating.

Whistleblower Insider:  By the way, what do you think about – you must have caught the recent news story about Cheerios, that the company would not use GMOs in the cereal?

“I keep seeing the power of truth, and David keeps beating Goliath when truth is in the slingshot.”

Tom Devine:  Yes, that wasn’t because of any GAP whistleblowers, but it put a big smile on my face.  It reaffirms that these battles aren’t hopeless.  Almost every time we start a case, people say, “What’s the matter with you, are you crazy?  You’re making a fool of yourself.”  But I’ve become, despite everything and all the horrible, corrupt abuses of power I’ve seen, I’ve become much more idealistic. I keep seeing the power of truth, and David keeps beating Goliath when truth is in the slingshot.  You know we are always going to have abuses of power and corruption, but it is a cop-out to say there is nothing you can do about it.  Individuals can fight back against humongous corporations or government bureaucracies if they have the truth and they organize effectively.

Whistleblower Insider:  Any ideas on what you, personally, will be working on over the next year?

Tom Devine:  My own docket is going to be dominated by trying to defend the people who defend whistleblowers in the government.  There’s been sort of a surge of harassment and retaliation against government whistleblower protection officials – at the Pentagon, at the Department of Labor, those responsible for protecting the private sector – and I’m pointing towards making those my prime clients over the next year.

Whistleblower Insider:  The idea being that for every single one of those individuals you help, you also help scores of whistleblowers?

Tom Devine:  Hopefully.

Whistleblower Insider:  Well, it sounds like you all are going to be just a bit busy.

Tom Devine:  Oh, for sure.  For me almost every day at GAP is a non-stop, 12 hour intense rollercoaster, and I love it.

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