Whistleblowers – headed to extinction?

COLUMBUS, Ohio (AP) — The guest lecturer steps to the front of classroom 322 with a lesson plan, but not from any textbook.

Instead, Dave Welch comes with a story to tell, edgy and very personal. The names have been changed, he says, “to protect the guilty.”

He directs students to the corporate financial forms projected on to a screen. Years ago, working at a small-town bank in the Virginia mountains, Welch combed through these figures and saw things that made him suspicious.

When he confronted the bank’s president with his doubts, it cost him his job.

The story might have ended there. But this time – months after titanic scandals capsized Enron and WorldCom – things would be different.

There ought to be a law, Congress decided, protecting workers who expose what might be the next Enron. Who could’ve imagined the fight between the little bank and the fired accountant would become the new measure’s most unlikely – and most strenuous – test?

More than 1,000 self-professed whistleblowers have come forward since.

The great majority have seen their cases rejected; about 160 settled before an initial ruling. Only six workers have won before a Labor Department judge – and the review board that hears appeals has not ruled in favor of a single whistleblower.

Now, Welch is ready to bring his story to a close. It’s not easy, though, to conclude something that winds on without an ending.

“This is the message the courts are sending to whistleblowers,” Welch says, the Tennessee in his voice taking on a chill. A new image beams on to the classroom screen – a pack of hunting dogs. In their midst is the prey, a nervous fox, head down low.

“When you’re in deep trouble, keep your mouth shut and your eyes straight ahead.”

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Six years ago, Americans embraced whistleblowers as a new kind of hero.

If only Sherron Watkins’ warning had been heeded, Enron might have survived, some said. Then an auditor, Cynthia Cooper, exposed massive bookkeeping fraud at WorldCom.

The “year of the whistleblower,” one magazine crowed.

In July 2002, President Bush signed a new law, known as Sarbanes-Oxley, requiring top executives to stand behind financial statements and work to prevent fraud and abuse.

But the law also spoke to corporate foot soldiers, offering whistleblower protection – albeit with loopholes.

From the start, though, that protection came into question. Hours after Bush signed, a spokeswoman said the administration believed it applied only to whistleblowers who talked to a Congressional committee pursuing an investigation.

“I don’t see any room for interpretation here,” responded one of the measure’s authors, Sen. Chuck Grassley, R-Iowa. “Our intent was plain, to protect corporate whistleblowers, period.”

Months later, tensions flared inside Cardinal Bankshares Corp., a holding company for the local bank in one-stoplight Floyd, Va., population 432.

Welch, the chief financial officer, refused to sign financial statements, saying they overstated profits. He told bank president Leon Moore he suspected him of insider trading. Moore was furious when Welch compared his 53-employee bank to Enron. The bank’s board fired Welch.

He turned to the federal Occupational Safety and Health Administration, which enforces whistleblower protection. An investigator determined the bank was not at fault.

But a federal administrative law judge saw it differently. The new law “was expressly enacted by Congress to foster the disclosure of corporate wrongdoing and to protect” the workers responsible, the judge wrote in early 2004, ruling the bank should reinstate Welch.

The decision made Welch the first worker protected by the new law. Now came the acid test: What was that protection worth?

—

There’s not much call for accountants in the small towns of the Blue Ridge, much less for one battling his former employer.

But Welch, attached to a 22-acre farm bought from his wife’s grandparents, was determined to stay. He spent six months sending out resumes and going to job interviews.

Afterward, though, employers seemed to vanish “into a black hole not to be heard from again,” he says.

With unemployment checks running out, Welch listened when a friend recommended a finance job at a hospital 3 1/2 hours away. He rented an apartment there, driving home on weekends.

The job was eliminated in cost-cutting a little more than a year later. But shortly before, the Labor Department judge ruled in Welch’s favor. The couple, who stumbled on the decision while checking e-mail during a vacation, embraced in the hotel lobby.

But the bank – denying Welch’s accusations and accusing him of insubordination and incompetence – would not give in.

“We determined through a thorough and fair investigation that there was no merit to Mr. Welch’s complaints,” the board wrote in the weekly Floyd Press. “We believe our decision was right then and we believe even more firmly now that our decision was correct.”

The bank appealed, investing in a case it saw as setting a crucial precedent.

“We just said, look, we’re not going to set back on this,” Moore says. “We’re going to fight it.”

Moore says people came up at the bank’s annual meeting and urged the company not to give in. He took his viewpoint on the road, speaking about the case to banking industry groups.

Meanwhile, Welch decided that to find work, the couple would have to move. He became convinced of his status as an exile when he ran into a former co-worker at the counter of the Floyd Pharmacy.

“She looked around to see if anybody was watching her,” Welch recalls, “and she said, ‘Excuse me, I can’t talk to you,’ and she walked away.”

—

Congress sent a straightforward message to would-be whistleblowers.

A worker didn’t have to be right. If the worker “reasonably believes” their company has broken securities law or harmed investors, and showed they’d been retaliated against for speaking up, that was enough.

But when the Labor judge ruled for Welch, the promise of resolution dissolved in a protracted tug-of-war.

The bank argued the ruling was not a “final” order. Taking Welch back was impossible. He’d already been replaced and reinstating him would severely disrupt life inside a small company where he was clearly not wanted.

Nearly 2 1/2 years after Welch was fired, the judge again ordered reinstatement and back pay. The company refused. The question of what to do bounced between Labor officials, federal court and the Administrative Review Board that has the Labor Department’s final word.

Federal lawyers argued the bank had to take Welch back, even if temporarily.

In spring 2006, the ARB, too, ordered Cardinal to take Welch back on a temporary basis. The bank again refused.

In October 2006, four years after Welch’s firing, a U.S. District Court judge in Roanoke, Va. declined to enforce reinstatement, while expressing concern.

“The delay in the administrative process has been inordinate,” Judge Glen Conrad wrote.

By then, the accountant had long given up finding another job locally. Down to one paycheck, the Welches say they burned through $115,000 in investments. In late 2004, they sold the farm where they’d hoped to retire.

Meanwhile, debate grew over Congress’ effort to protect whistleblowers.

Lawyers for companies say many corporate whistleblower cases failed because they are frivolous, brought by angry workers looking to settle a score.

In the few cases like Welch’s that moved forward, the government has investigated carefully, determining that much of what workers allege is beyond the law’s scope, said Michael Delikat, a New York attorney who represents employers in such cases.

Critics disagree. The Labor Department has been “defining more and more whistleblowers out of protection,” said Richard Moberly, a University of Nebraska law professor who analyzed the outcomes of such cases.

Labor Department officials say they are administering the law as it was written.

“We’re trying to apply things and understand them,” said Nilgun Tolek, director of OSHA’s whistleblower protection office.

The law, she says, applies to workers who report suspected wire fraud, bank fraud and other specific misconduct: “While some people may see that as reading the statute too narrowly, that is what the statute says.”

The Labor Department’s effectiveness is reflected, at least partly, in its brokering of settlements between workers and employers, officials say.

But critics note how few decisions favor workers. Through February, the government had ruled in 1,091 Sarbanes-Oxley cases, coming down on the side of workers just 17 times in initial rulings.

“The carefully targeted legislation that you’ve described is legislation that has failed to protect people,” Rep. Tim Bishop, D-N.Y., said at a House hearing last year .

The promise to protect whistleblowers is falling well short of expectations, Moberly says.

The prime example, he says, is the odyssey of Dave Welch.

—

Without work, Welch went back to school. When Franklin University in Columbus, Ohio called about a job early last year, he said a prayer.

At the end of his interview, Welch was shown in to the office of Paul Otte, the school’s president at the time.

Otte is a blunt-spoken long-ago Marine who sits on two corporate boards. He’d heard about Welch.

“Let me ask you,” Otte said. “Did you refuse to certify (the bank’s financial statements) or did you sign them and then blow the whistle?”

“I refused to sign,” Welch said, unsure which was the right answer.

It was good enough for Otte, who’d just written an article preaching this message: “The greatest failures resulting from unchallenged authority have occurred when people reporting directly to the CEO lacked the courage to challenge their boss.”

Last July – nearly five years after Cardinal fired Welch – the Labor Department’s review board ruled in favor of the bank. As a trained accountant, Welch could not have “reasonably believed” that the financial reports he objected to were problematic, the board said.

The ruling came weeks before Welch started his new job, supervising introductory accounting classes.

He makes the rounds of classes, offering his experience as a window into the real-world choices students will be expected to make.

But he and the bank have continued battling.

Soon after the review board ruled, Welch appealed. The case is set to be heard by a federal appeals court in Richmond, Va. in mid-May.

Both the accountant and the bank say they deserve to win. Both say that, whatever the court decides, the case may well continue.

Moore, the bank president, acknowledges Cardinal has spent heavily, but says it never considered settling. The stakes are too high to compromise.

“If you don’t stand up for what you think’s right, then you don’t really need to be in this business,” Moore says.

At least on that, the two men can agree.

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