(Don’t) Keep Your Head Down

Government needs to have mandatory discipline for high-ranking officials who act like jerks, and a mandatory snitch rule for lower-level employees who pretend they didn’t see it.  If Massachusetts had such a policy, we might not be in the mess we now face about faked test results at the state lab.

Have you ever heard the term “disruptive physician”?  The term “disruptive” means doing things that would get you fired on the spot if you were a less exalted person than an M.D.  (Question: what you call a disruptive lawyer?  Answer: a litigator.)  Unless you’re a doc with admitting privileges, you’ve probably never heard about disruptive physician policies.  These policies came into being about the same time that all 50 states began to use a centralized registry for physician discipline so that if University Hospital axes Dr. Frankenstein after a few too many complaints of operating (surgically) under the influence of alcohol, the good doctor cannot toddle down the street and make a fresh start at Mt. St. Elsewhere.

When analysts began looking closely at negative patient outcomes, we were all astonished to learn that disruptive physicians were firmly linked to morbidity and mortality.  Put in simplest terms, if Dr. Frankenstein has a habit of verbally abusing the ICU nurse who calls him in the middle of the night about a patient who is not doing well, sooner or later that nurse’s subconscious causes her to start taking a more rosy view of the patient’s symptoms.  Dr. Frankenstein arrives fresh and rested in the morning, but the patient lost too much ground over the night, and oops! there you have it, a negative patient outcome, also called “death.”

So here’s how the problem was addressed.  Malpractice insurance underwriters and accrediting bodies require hospitals to have disruptive physician policies that clearly define the prohibited behavior, and to train all staff – right down to the parking-lot attendants – every year about what the policy says.  What makes it work is the mandatory-snitch rule.  If said parking lot attendant happens to witness a physician in violation of the policy, the incident must be reported or the attendant’s job is on the line.

It sounds ridiculous: threaten to fire the victims of an abusive bastard if they are too intimidated to stand up for themselves?  But on closer inspection it functions exactly as a good policy should, by removing the incentive to take the easy way out.  If an employee fails to report dangerous behavior because she’s afraid of getting fired, we’ll make sure to even up the odds by mandating firing for a failure to report.  As Henry Ford said about the clutch, it’s brutal, but it works.

I see a lot of bad behavior.  The top-ranked person where I work tried to sneak into the building through the parking garage because he forgot his ID and did not want to take the time to clear security at the front door.  When a security officer caught him and directed him report to the main desk for an escort to his office, the head honcho pitched a fit and called the officer a bunch of names. When a supervisor arrived to take over,  Mr. Boss implied that he had enough clout to have the security company’s contract terminated, and then, just in case his message was not heard, commented on the British accent of the supervisor and let him know that he would be checking into the man’s citizenship.

Does anyone want to join me in speculating whether it might be easier for an unauthorized person wearing an expensive suit to make it through the parking garage next time?

When I worked for the Department of Housing and Community Development as a lawyer for the Norfolk-area local housing authorities, I found myself out of a job after I notified law enforcement and the state auditor’s office that the head of one of  the authorities I covered was using his position to run a racket that defrauded senior citizens out of their homes.  Later, while working for the Massachusetts Board of Registration in Medicine, I suggested that it was wrong for prosecutors (I was one) to have ex-parte communication with the tribunal;   I did not keep that job long, either.

Now I work for the Massachusetts Department of Labor and Workforce Development, and so far, I have not made waves of any discernible size.  My best friend reliably responds to any stray remark I make about idiocy in my workplace with an urgent question: “Are you keeping your head down?”  I tell him yes.  I wish I weren’t, but at 51, I’m not sure I’d land on my feet again if I lost this job.

No waves were made at the Massachusetts state lab for 11 years, while a chemist named Annie Dookhan performed more tests than could possibly have been done in the time she did them.  It was kind of like that politician who explained that he banked hundreds of thousands of dollars while earning substantially less because he lived frugally.  No.  Just no.  This wasn’t even close.

Everyone at that lab knew that Ms. Dookhan could not do the work she was doing, and no one did anything about it.  The ramifications are paralyzing.  John Auerbach, the Commissioner of the Massachusetts DPH and a very good guy, resigned, saying the buck stopped with him.  The Commonwealth has begun the process of releasing drug dealers convicted on the basis of faked test results.  Ms. Dookhan has admitted that, in at least one instance, she forged a colleague’s initials on a test result, casting doubt on any test performed by any employee when Dookhan was even in the building.

There are 1141 people behind bars due to convictions with Ms. Dookhan’s signature behind them.  A special court session has been created in each county just to hear bail applications and motions for new trials.  The district attorneys across the Commonwealth have sought $10 million a year to handle the post-conviction problems with the tainted cases.  Who in god’s name is going to represent Ms. Dookhan in the criminal case?  Any decent criminal defense lawyer is going to be conflicted out since it is virtually impossible for an experienced lawyer to have no client affected by what she did.

Anyway, back to my point, and the title of this article.  There is something about state employment that discourages active participation in improving the system.  It’s bad enough that I can’t get anyone to listen to me when I point out that a simple change in a form letter could save myriad unnecessary appeals, including full-dress evidentiary hearings at the Executive Office of Labor and Workforce Development.  The state lab scandal shows that there is no time to lose; Massachusetts must act right now to change the culture of keeping your head down.

When it comes to outright criminal misconduct by government employees, whistleblower laws are not enough.  Sure, if one of those people whose state police interviews show they knew what Ms. Dookhan was doing, except they did not really know-know, had been a little more strident and gotten fired, he or she would have had the right to bring a lawsuit alleging wrongful termination of employment.  That is cold comfort to a state employee who has raised the matter internally to no effect.  That person weighs the options (a) I do nothing and my life continues; (b) I report the matter to the media, spend the next several months being interviewed by hostile internal investigators, run the risk of adverse employment actions, and the only protection I have is the possibility of a cash jackpot many years later, after my life has gone straight into the sewer.

No, the only workable solution is brutal.  Ms. Dookhan’s colleagues should have faced a choice with no easy out: (a) report this and suffer the chances of a bad outcome, or (b) do nothing and know that if someone else reports it (and the likelihood just increased hugely) I will get fired for my silence just the same.

As with the docs, the policy has to cover being a jerk as well as robbing the till. A civil servant who thinks he can get away with abusing his underlings is likely to abuse the public, and the public trust, as well, and some of the lower-downs who have to live with the abuse will take it out on the citizens or give themselves informal compensatory raises out of the public fisc.

We’re in a terrible downward spiral: distrust of government leads to contempt for public employees, which drives half the good people out of public service entirely and discourages the other half from doing the right thing when it’s hard. That leads to poor performance, which leads to more distrust of government, which leads to more contempt. The cycle has to be broken somewhere; putting some backbone into public-sector ethics wouldn’t be a bad start.

Author: Lowry Heussler

Lowry Heussler is a lawyer from Cambridge, Massachusetts. Having participated in the RBC as a guest-blogger, she made it official in 2012. Her most important contribution to the field of public policy to date was her 1994 instruction to Mark Kleiman, "Read Ann Landers every day. You need to learn about real people." Her essay on the 2009 arrest of Henry Louis Gates went viral and brought about one of her proudest moments, being described as "just another twit along the lines of Sharpton, Jackson, Gates, etc." (Small Dead Animals Blog). Currently serving as General Counsel to BOTEC Analysis Corp., she has been a public housing lawyer, a prosecutor for the Board of Registration in Medicine, a large-firm associate and a small-firm partner. She serves as a board member for NEADS, Dogs for Deaf and Disabled Americans, a charity that trains service dogs to increase independence for people with disabilities.

21 thoughts on “(Don’t) Keep Your Head Down”

  1. This certainly jibes with my experience; the civil service idea (that people will be willing to take risks to keep their bosses and coworkers honest if they have civil service protections) has been just about proven false or rendered inoperative. Government employees aren’t much less cowed than those who work for Wal-mart.  Particularly in the paramilitary sectors (public safety jobs), where loyalty and “us vs. them” dominates, you find that any egregious conduct can and will be justified by the sins of “them” (real or imagined).

    And, reinforcing the cycle, the outsiders (public and media) condemn everyone in these institutions as lazy careerist bureaucrats whose only goal is fleecing the public and securing a fat pension; soon, the person inside thinking about whether to suffer the consequences of whistle blowing finds that he or she is not even all that fond of the public that constantly lambastes all public workers as lazy slugs who need a good whipping daily and a payout regularly.  

    1. “This certainly jibes with my experience; the civil service idea (that people will be willing to take risks to keep their bosses and coworkers honest if they have civil service protections) has been just about proven false or rendered inoperative. Government employees aren’t much less cowed than those who work for Wal-mart.  Particularly in the paramilitary sectors (public safety jobs), where loyalty and “us vs. them” dominates, you find that any egregious conduct can and will be justified by the sins of “them” (real or imagined).”


      1. Well, there is copious anecdata for the latter part of the quote at least. See the Schoolcraft tapes, for instance. Now, maybe you could argue that the fact that Schoolcraft did come forward is evidence in the opposite direction, but I’d argue that you don’t get a culture like the one on those tapes unless virtually no one is willing to break with the party line.

      2. I would think that the Obama administration indicting and prosecuting whistle-blowers who reported on situations that were clear violations of their agencies’ rules & regs would be substantial proof, doncha?


      3. “This certainly jibes with my experience;” he wrote.

        To which you replied “Proof?”

        Gee, Barry, what part of “it’s my personal experience” requires proof?

      4. The copious number of cases where an officer causes someone’s death through blatant misuse of a weapon, and yet escapes without facing criminal charges, or often, even losing their job or pension?

        I have rather personal experience here, since my father was shot and killed by a policeman who fired into our station-wagon in a busy grocery store parking lot.

    2. Particularly in the paramilitary sectors (public safety jobs), where loyalty and “us vs. them” dominates, you find that any egregious conduct can and will be justified by the sins of “them” (real or imagined).

      And the troubling thing is that people’s deep distrust of “government” and “public employees” usually does not extend to public safety employees. As you say, public safety branches of government are the most authoritarian, and mostly likely to foster and us vs. them outlook that allows misconduct to go unpunished. The prospect of the public turning against all branches of government except the most authoritarian ones is deeply troubling.

  2. Sexual harrassment training—at least for California state employees–already has a strong element of this. If someone brings me a complaint of sexual harassment I am *required* to report it upwards even if the victim (or alleged victim; one of the points of reporting it upwards is to allow due process for the accused) doesn’t want that.

    Two worries come to mind:
    —kicking the culture of keeping quiet further down. The doctor who screamed at security in the parking lot did so in front of lots of witnesses, as did (more subtly) the person who did thousands of “tests” that couldn’t be performed in the time claimed. But lots of misconduct is in a position to be found out by exactly one witness. If that witness knows that higher-ups will make a decision whether or not to do anything, and may in fact do nothing, the expected cost of casually mentioning a problem may be low. If he or she knows that higher-ups are *required* to make a report, and knows that the source of the complaint will be easily traced back by someone in a position to retaliate, keeping quiet may seem the best option.
    —over-deterrence. In the case of sexual harassment, conservatives (and some maverick progressives) famously complain that sexual harrassment policies have deterred ordinary and harmless flirtation, and discussions of personal problems. I actually know of little evidence of this—partly because a good harassment policy, like California’s, involves reporting allegations upwards but quickly dismissing the ones that don’t, as a matter of fact or law, amount to sexual harassment. Policies against “disruptive” behavior *could* be carefully crafted in a similar way. But this might take time, and in the meantime they might create an unfortunate incentive to hire only mild personalities to the exclusion of those who might be a little difficult but extremely capable.

    I actually worry about the second outcome. The general public may worry that public agencies are corrupt and self-dealing, but I can tell you from personal experience that the biggest worry of people thinking about staffing them (Masters in Public Policy students and public affairs undergraduates) is that they’re mediocre and boring: top people who want to make a real difference won’t be rewarded for their talent or vision. An anti-disruption policy might have the result–or, almost as bad, the perceived result–of exacerbating that.

  3. I wonder how much of the Dookhan scandal was caused by MA’s political culture of nepotism/cronyism/patronage. I have not read that she was politically connected in any way, but that whole issue is, IMO, a major problem in the state. I’d almost argue it’s the biggest, since it manifests itself in so many ways. Even if that’s not directly the source of the crime lab problem I wonder if state employees, including Dookhan’s co-workers, have a reflexive tolerance for misconduct because of that culture.

    1. I wonder how much of that is just endemic to crime labs. Without any personal experience of it, my guess is that in general no one with any power over a crime lab is complaining that it’s making it too easy to get convictions.

      1. You can add to the list the Houston / Harris County drug testing for probationers. That drug lab was terrible. A stalwart attorney finally managed to blow the lid of that situation in the last few months. The lab regularly mixed up samples. One lawyer commented that his client when called for a test handed him all his personal items because the client knew he’d get busted. He returned to get his stuff and commented that some poor guy is getting hauled away because the client’s sample got mis-labeled.

  4. It seems to me that this sort of draconian policy forcing the dilemma upon lower echelon employees (report and risk being fired, don’t report and risk being fired) only works if unemployment is so high that there’s an endless line of desperate applicants for the positions affected. Who would want to become a parking lot attendant if, in addition to the low pay, boring work and lack of prestige, there’s also the risk of being constantly put into no-win situations where you are likely to be terminated no matter what you do? If you want to implement this equitably you really need to improve the quality of decision making such that a whistleblower has some assurance that their honesty won’t cost them their livelihood.

    1. Pretty much what I was thinking while reading all this.

      OK, there are “disruptive physicians” who need to be held in check or gotten rid of, but who the heck hired them in the first place? Those personalities really aren’t all that hard to spot. Similarly, where was the supervisor of the Mass. chemist?

      Seems to me that putting all the weight on the lower-level employees serves to exempt supervisors and managers from supervising and managing.

      It is, to be honest, a heck of a lot harder to train up supervisors and managers than to scare the wits out of lower-level employees, but I wonder whether having a rule that the supervisor of the guy with the bad behavior gets fired along with him/her if he/she never knew and/or tolerated the behavior wouldn’t also be a good idea.

      I’ve known wayy to many supervisors who simply failed to supervise, and that, it seems to me, contributes hugely to poor morale and failure to report stuff like the Mass. chemist.

      The Mass. DPH commissioner resigning because of this seems a little much, but maybe he should have if he’s the one who hired and managed the people who failed to ensure the people under them were performing their managerial duties properly.

    2. I think you really hit the nail on the head. You’re right in saying that all this policy does is put the lower echelon in a bind. What’s worse, it does so without changing the fact the it’s better to remain silent and risk being fired than it speak up and accept the near certainty of being fired and probably also enduing reprisals from both the person you reported and the upper echelon managers to whom you reported that persons.

      I suggest something different: Everybody in the organization has a duty to report. If the lower worker (nurse, janitor, whoever) doesn’t report, then he loses his job. But here’s something new: Anytime that an employee doesn’t report but should have reported, the head of the organization loses his job. That gives bosses real incentives encourage whistle-blowers and to make sure that everyone is the organization understands and believes they will be protected from reprisals.

      This whose business reminds me of Enron’s problem with corporate ethics. Enron had a really great corporate ethics policy, written by really talented, well-meaning people. The problem wasn’t that they didn’t have a corporate ethics policy. The problems was that Enron and the people who ran it simply had neither morals nor ethics and made it clear to everybody that keeping one’s job and not being blackballed everywhere else required being a “team player”. The idea that the nurses and janitors should be forced to risk their jobs, while the bosses have no comparable risk exposure tells me that this is just a phony-baloney way of shielding the people most responsible from accountability. It’s worse than a joke.

      1. I like this one. While we’re wielding the axe, though, any retaliation or perceived retaliation against the whistleblower should be a firing offense. Sure, this gives malicious rumor-spreaders temporary immunity against firing for incompetence, but it’s probably worth it.

  5. “There is something about state employment that discourages active participation in improving the system.”

    You can drop the word “state”, right? “Don’t make waves” is true everywhere.

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