1 Boring Old Man

From the Pentagon Papers to Allen Jones:

Why it’s so hard to be a whistleblower
by Alison Bass
January 18, 2012

Allen Jones, the whistleblower in an ongoing landmark trial against the pharmaceutical giant Johnson & Johnson, was very much on my mind this past weekend. I was participating in a workshop to develop curriculum to teach college students about the importance of standing up for their ethical values and if necessary, blowing the whistle on wrongdoing in their place of employment. The workshop in Washington, D.C. was sponsored by the Government Accountability Project [GAP], a nonprofit organization that represents whistle-blowers of all stripes from Daniel Ellsberg, who leaked the Pentagon Papers, to Allen Jones, who blew the whistle on the illegal payments Johnson & Johnson was making to state employees to promote the off-label use of its anti-psychotic drug, Risperdal, in children.

Jones first noticed these illegal payments when he was investigator for the state of Pennsylvania’s Office of Inspector General. He discovered that the state’s top pharmacist, the guy in charge of deciding what drugs should be included in its Medicaid formulary, was receiving hidden payments from J&J, the maker of Risperdal. Jones was fired when he brought those illegal payments to light, but he persevered, and with the help of GAP, won a lawsuit against the state of Pennsylvania and eventually saw the state pharmacist who was on the take fired from his job. As 1boringoldman and others have detailed, Jones went on to sue J&J in the state of Texas, where public officials were also being paid to fly all over the country and promote the off-label use of Risperdal in children…

As I sat around the conference table this weekend and heard one horror story after another about folks who spoke truth to power and ended up losing their jobs and being permanently blacklisted from employment in their chosen field, it made me wonder why it’s so difficult to be a whistle-blower in our society. [In the case of former Department of Justice lawyer Jesselyn Radack, whose book A Canary in the Coal Mine I just finished reading, the Bush administration was so bent on retaliating against her for blowing the whistle on the administration’s failure to give an American citizen arrested in Afghanistan his due rights to legal counsel that they not only prevented her from getting another legal job in the private sector but they also put her name on the No Fly list, making her subject to humiliating body searches every time she tried to board a plane]. Yet like Radack, most whistle-blowers are people who are simply trying to do the right thing and stand up to injustice, corruption or abuses in the corporate or public sector.

So why it is so difficult to raise ethical concerns today? It’s true that derogatory words like snitch, rat and tattle-tale have always been a part of our culture, and there’s no question that corporations put a premium on loyalty and conformity. But despite Congressional efforts to protect whistle-blowers [with the Whistleblower Protection Act], it seems to be more difficult than ever to speak up. Even though more workers are witnessing violations of company rules, retaliation against employees has risen to a new high, the 2011 National Business Ethics Survey found. More than a fifth of employees who reported a violation at work said they experienced some kind of retaliation, according to the Huffington Post. Most of those employees, of course, never went any further and leaked the information to the media, as Radack and Ellsberg did, subjecting both of them to enormous retaliatory pressures, such as concocted criminal charges…

I agree with Alison that the retaliation against whistle-blowers has regularly been vicious – something we all witnessed publicly in the Joseph Wilson / Valerie Plame affair and with other Iraq War whistleblowers – Katherine Gun and Dr. David Kelley. But there are other personal forces at work as well. In order to ethically expose wrong-doing, one has to divert one’s whole life into the encompassing identity of whistleblower. Mordechai Vanunu who exposed the Israeli nuclear bomb program is a paradigmatic example – spending 18 years in prison as a traitor and still living under government imposed restrictions even today. Daniel Ellsberg’s name is now synonymous with being The Whistleblower of the Pentagon Papers.

I met someone recently who made me aware of another problem that I wouldn’t have thought of. Potential whistleblowers don’t know how to do it – none of us do. They don’t know what resources are available, and may have the naive idea that simply exposing a wrong will lead to a just conclusion. But the truth is that once the whistle blows, the whistleblower loses any access to more information. So if you sound the alarm prematurely and you don’t have incontrovertible evidence already in hand, one can be retaliated against as well as watch the guilty party slide out of danger – then be haunted by the missed opportunity. On the other hand, waiting can be perilous. Daniel Ellsberg now regrets waiting too long to release the Pentagon Papers.

^{What has to be understood is that most whistle-blowers are not natural activists – this one certainly wasn’t. We usually work in anonymous jobs, far from the spotlight. We are not campaigners or journalists or wannabe celebrities craving a platform. Our conscience tells us we must reveal what we know. We do that, we blow the whistle, and overnight the whole media circus descends on us. You just don’t know what to do … that’s why we stick together.}

As I watched this parade of witnesses, I kept thinking about how many potential whistleblowers there were in this case, how many people were in a position to know something very wrong was going on and didn’t say a word – who, in fact, participated enthusiastically. Only two of them [Bill Struyk, of Reimbursements, and Tone Jones, a District Manager] were forthcoming and non-defensive in answering questions in their depositions – even though most of those testifying were former employees of Janssen. It’s easy to decry their complicity, their misplaced loyalties, their silence, their continued defensiveness even in a deposition under oath. But as this case makes abundantly clear, not being a whistleblower is the norm.

I agree with Ms. Gun about what whistleblowers are not ["We are not campaigners or journalists or wannabe celebrities craving a platform"]. In fact that seems to be a part of the story in many cases, people who are outside the main flow of things who come upon their information, not because they’re looking for it, but in the normal course of doing their jobs. My impression is that these exceptional people [as in an exception to the norm] are people who can’t not become whistleblowers, even though it is an extremely hard thing to do as Alison Bass points out in this post. It’s also my impression that the majority of them who are unsuccessful or even hurt don’t look back on the experience regretting that they spoke out, but are instead disappointed, disillusioned, or even bitter about the outcome.

It’s not fashionable to talk about the mind these days, or the forces at work in the development of the psyche. That gets dangerously close to sounding Freudian [as in superego] or not evidenced-based or measurement-based. But I doubt seriously that there’s a whistleblower gene people are born with. The development of morality is a complex compendium of experience, observation, teaching, and modelling by important figures along the way. I would propose that whistleblowers are people who have been enabled to develop a conscience that is more independent of the surround than others, that they are indeed exceptional in more ways than one. And while there may be whistlebowers that are motivated by financial gain, I don’t see any people highlighted in this post who fit that category, including Allen Jones.

From what we know about the development of ethics and morality, fear of personal punishment or disapproval is a tool used by parents since the dawn of time to shape moral development. But the example parents set by their own behavior is probably an even more powerful force. I’m all for making the path for the kind of exceptional people who become whistleblowers easier, but I think we’d be well placed to begin to punish people in high places who misbehave rather than just the corporations they work for. And it wouldn’t be a bad idea to have consequences for people further down the chain who participate in things that are clearly illegal. If Sales Reps for Pharmaceutical Companies had to be licensed, or at least registered, and the consequence of something like promoting drugs off label resulted in a loss of that license or registration, this would have been a very different story.