Whistleblowing has deep and important roots in our society. While they are sometimes villainized by wrongdoers whose conduct they are exposing, whistleblowers are courageous, ethical, and righteous people who often place the interests of others ahead of their own. Whistleblowers shine a light on illegal, fraudulent, and dangerous conduct so that we as a society can benefit.
On July 30th we celebrated National Whistleblower Appreciation Day, commemorating the enactment of America’s first whistleblower protection statute in 1778. That resolution by the Continental Congress arose from a petition filed by sailors in the Continental Navy against Commodore Esek Hopkins, the commander in chief of the nascent navy, on February 19, 1777. This petition reported and exposed Commodore Hopkins’ abuses of prisoners of war and other egregious failings, which he had refused to remedy when confronted. As a result, the Continental Congress passed a resolution relieving Commodore Hopkins from his position. But Commodore Hopkins retaliated against the sailors who had blown-the-whistle on his improper conduct, by attempting to prosecute them before he left command and bringing conspiracy and criminal libel claims against them. On such sailor, Richard Marvin, was successfully court marshalled and terminated by Commodore Hopkins. Two sailors were also arrested based on the charges brought by Commodore Hopkins.
The sailors petitioned the Continental Congress, noting that Commodore Hopkins had wealth, power, and resources that they lacked and that he was using his position to retaliate against them for simply doing what they believe was in the best interest of the young country and its revolutionary effort. On July 30, 1778, the Continental Congress came to their rescue, passing a resolution agreeing to pay for the sailors’ attorneys and legal costs to defend against the Commodore’s retaliatory lawsuits, and emphasizing the importance of whistleblowing: “[I]t is the duty of all persons in the service of the United States, as well as all other inhabitants thereof, to give the earliest information to Congress or any other proper authority of any misconduct, frauds or misdemeanors committed by any persons in the service of these states, which may come to their knowledge.” Eventually, the sailors were able to successfully defend against Commodore Hopkins’ claims.
The story of America’s first whistleblower protection law illustrates many of the same issues that whistleblowers deal with today, nearly 250 years later. Whistleblowers are often reporting and opposing the victimization of others, they try to fix things internally before going to the government, they courageously stick to their ethics even when they are personally threatened, they suffer retaliation that can ruin their careers, and they face the daunting prospect of legal fees and costs in order to protect themselves.
Given all of the barriers and dangers that whistleblowers must face, both today and 250 years ago, it is no surprise that they often times undertake significant research before the whistle ever reaches their lips, in order to understand what they are getting themselves (and their families) into. That is where The Anti-Fraud Coalition’s Whistleblower Summer School series comes in. Over the next several weeks we hope to provide posts addressing some of the most common and important questions that would-be-whistleblowers have. It’s wonderful to speak in generalities about the importance and impact of whistleblowers, but when a particular employee is deciding whether to risk their entire career over trying to stop their employer’s illegal conduct such platitudes go out the window. Potential whistleblowers need answers, and we hope to provide some guidance to help individuals and their counsel make informed decisions about the whistleblowing process.
Over the next few weeks, here on The Anti-Fraud Coalition’s blog, whistleblower advocates will discuss some of the most common and complex questions that potential whistleblowers often have. Unfortunately, as with almost any legal issues, the broad answer is usually “it depends,” but we hope to provide some guidance and clarity on important issues. These posts will cover topics such as protection from retaliation, the effect that a whistleblower’s position or title has on their protections and incentives, what information a whistleblower can and should have to be successful, what to do when the evidence of illegal conduct is subject to HIPAA or a confidentiality agreement, and the lessons that other whistleblowers have learned from going through the process. It’s important to understand that none of these posts provide legal advice, but are instead presented for educational purposes – potential whistleblowers should contact experienced counsel to navigate this complex area of law.
With the assistance of experienced counsel and advocates, whistleblowers can truly change the world for the better, while at the same time protecting themselves and reaping potential rewards. However, like any complex topic, whistleblowing takes a lot of study to understand – so, welcome to Whistleblower Summer School.
Clayton Wire is a Partner at Ogborn Mihm LLP