Whistleblowers face retaliation, need better protections, summit leaders say

America’s first whistleblower law was passed July 30, 1778. Michael McCray, a Pine Bluff native who worked in President Bill Clinton’s Department of Agriculture, said it didn’t protect him.

McCray spoke at a Whistleblower Summit for Civil & Human Rights at the Clinton School of Public Service Friday. He said that, as a community development specialist, he found $40 million was awarded to a nonprofit organization that wasn’t capable of handling that kind of money but was located in then-U.S. Agriculture Secretary Mike Espy’s old congressional district.

McCray said he alerted his superiors, the Office of the Inspector General and others. An attorney, he said he lost his job, his fiancee and business opportunities because he called attention to the $40 million award.

“Ultimately, it was a lot of bureaucratic nonsense. … I’ve been on a 20-year-long whistleblower journey,” he said. “Just yesterday, I’m still filing papers with the Office of Special Counsel. So essentially, nothing really came of it, although Secretary Espy was asked to resign. The real question is, what happened to the money?”

Espy was forced to resign after being accused of improperly accepting gifts in an unrelated matter. But a jury in 1998 acquitted Espy of wrongdoing, with many of them scolding the prosecutor for presenting a weak and unnecessary case.

McCray became an advocate for whistleblowers, whom he said are often accused of being “snitches,” by joining the Make It Safe Campaign, an advocacy group, and working for the Whistleblower Summit.

“Once you become a threat to the system, to the establishment, then the system turns against you,” he said. “And a lot of times when people finally blow the whistle, they’re responding to retaliation that’s already started to take place. So many people that come to our conferences, they kind of blew the whistle by accident, but now they’re on a journey.”

He said whistleblowers are “a little speck” surrounded by the corporation or government agency they expose. However, they are empowered when they use societal pressures against those large organizations.

Marcel Reid, who also works with the Summit, has been on a similar journey as McCray’s as a whistleblower.

“What happens to you when you blow the whistle is that first you’re marginalized, then you’re attacked with everything that they can muster to attack you, and in the end, you find yourself isolated with no one else who’s heard your story, or you can find yourself in a loop of telling your story all the time,” she said.

The Summit, held April 21-23, included an awards luncheon Friday where state Rep. Vivian Flowers, D-Pine Bluff, was awarded a Pillar Award because she helped sponsor a resolution marking National Whistleblower Appreciation Day July 30.

Also speaking was Steve Kohn, an attorney. Kohn represented Swiss banker Bradley Birkenfeld, who blew the whistle on Swiss bank UBS, spent 2.5 years in an American prison, and then was paid $104 million by the same U.S. government that prosecuted him.

Kohn said the first whistleblower resolution in the country – and maybe in the world – was passed by the Continental Congress on July 30, 1778. It stated that Americans have a duty to report misconduct and fraud to Congress and other authorities. The resolution was passed after 10 American sailors accused U.S. Navy Commodore Esek Hopkins of torturing captured British sailors. After Congress suspended Hopkins, he filed a criminal libel suit that led to two of the whistleblowers being arrested in Rhode Island.

Kohn noted that, during the middle of the Revolutionary War, Congress also voted to publicly release the papers related to the allegations and to pay $1,418 in attorney’s fees for the accused, who were found not guilty.

Earlier this year, U.S. Sen. Tammy Baldwin, D-Wisc., and U.S. Rep. Elijah Cummings, D-Md., filed the Whistleblower Augmented Reward and Non-Retaliation Act of 2016. According to McCray’s Make It Safe campaign, the legislation would enhance whistleblower protects for those who challenge bank fraud. Key items in the legislation include:
• Upgrade all financial whistleblower laws to best practice standards, while eliminating vague or contradictory language that has confused the courts;

• Modernize and expand protection against increasingly aggressive gag orders and other tactics to silence financial whistleblowers and even deprive them of counsel;

• Expand the scope and strength of  whistleblowing rights  and anti-retaliation remedies;

• Cancel the SEC’s discretion to arbitrarily reduce or withdraw whistleblower awards due to reasonable delays in filing a disclosure; and

• Remove outdated or arbitrary limits on whistleblower rewards.

Arkansas legislators passed a whistleblower law in 1999 and it was amended in 2013.