Our new little group presented on whistleblower law for the DC chapter of the ACFE. The day went well. I was surprised to find that the DC chapter is afraid of a little snow, but those in attendance were big fun. Three of us moderated the event – me, Tom Borgers, and Louise Harris. We discussed international whistleblower trends, national whistleblower trends, the four mandatory qui tam programs in the US, and how those programs compare to anti-retaliation programs. People liked the small group exercise, which always surprises me because small group exercises are commonplace in higher education circles, but no one seems to do them in continuing legal or professional education. I liked teasing the participants and then poking at the OSC representative, Shirine Moazed, a little bit. She took it well and defended her office like a champ.
Shirine Moazed is the Chief of the Washington Field Office of the U.S. Office of Special Counsel. She spoke for close to forty-five minutes about federal government whistleblowers and the anti-retaliation policies in place to protect them. I could not resist bringing up Scott Bloch, the former head of the OSC, who filed a complaint in a Virginia court complaining that his efforts to protect whistleblowers at the OSC were squelched for political reasons. Shirine corrected me on a lot of points. She offered up some explanation about Bloch not caring enough about retaliation complainants to have messed with them; he reportedly spent most of his time messing with “disclosure” complainants. Because of this distinction, the damage suffered by federal employee whistleblowers is thought to be far less than one would imagine – or so I’m told. I listened politely, tried not to roll my eyes, and later was congratulated for my self-restraint.
My view is anti-retaliation programs that do not have a qui tam component are doomed. Retaliation, like it or not, is human nature, and for a variety of reasons, it’s really, really tough to get a pro-whistleblower decision. For that reason, I think qui tam programs make the most sense. If someone is going to retaliation against you for pointing out some kind of misconduct, make them pay for the privilege. The defendant will think twice about punishing whistleblowers in the future, and the whistleblower can walk away with a little cash and some self-respect.
Participants in the session walked out with a better than average understanding of what qui tam programs are available and how to spot a likely qui tam claim. I haven’t done any kind of exhaustive search on the subject, but I believe the United States is the only country in the world offering mandatory qui tam programs right now. Lots of countries and government entities talk about whistleblower protection. Keep in mind that unless there is a qui tam component involved, anti-retaliation provisions aren’t going to help a whistleblower much.
When you speak at one of these events, the Chapter typically rewards you with a little gizmo. Louise, Tom, and I each got a little ACFE challenge coin. Louise explained the lore of the coin to me; she claims that if we go drinking, we put our coins on the bar, and whoever doesn’t have a coin has to buy the round. I’m skeptical because I have been at a lot of bars with a lot of CFEs, and I’ve never seen these coins before, but she has me convinced enough to carry the coin with me to all future events. If I see you at an event, you can bet I am laying that coin down. I figure it will save me a fortune.