- Stephen Martin Kohn
- National Whistleblower Appreciation Day
- Senator Charles Grassley
- Bradley Birkenfeld
- A. Leon Higginbotham
- Merit Systems Protection Board (MSPB)
- Lyons Press
- Special Counsel Robert Mueller
- Paul Manafort
- Chelsea Manning
- Whistleblower Protection Act (WPA)
- Coalition for Change (C4C)
- Candido Rio Vazquez
- Foreign Corrupt Practice Act (FCPA)
The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself, by Stephen Martin Kohn, ESQ (Lyons Press, Guilford, Connecticut, 2017, 550 pages).
Book Review by Dennis Moore
“You can’t fix something if you don’t know it’s broken. That’s just common
- Senator Charles Grassley, July 30th 2015 – Whistleblower Day Celebration
August 29, 2017 (San Diego) - Stephen Martin Kohn, nationally acclaimed expert on whistleblower law, has written a provocative book on an issue that seems timely in this day and age; The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself.
This book resonates with me for a number of reasons, most notably, as Kohn indicates that he dedicates the book to one of his “extraordinary teachers”, A. Leon Higginbotham Jr., whom I met many years ago at an event in my hometown of Chicago, and Mr. Higginbotham signed and autographed his book to me stating; “Keep fighting for justice!” Also, my earlier personal involvement in a whistleblower and retaliation case.
What jumped out at me immediately about this well researched and documented book by Kohn, was the revelation that through his efforts, a Mr. Bradley Birkenfeld was awarded $104 million under the IRS’s whistleblower program. It was the single largest whistleblower reward paid in world history to a single individual. That should get everyone’s attention!
This book by Kohn is timely, in that Senator Charles Grassley introduced recently in the Senate a resolution designating July 30, 2017, as “National Whistleblower Appreciation Day”.
The newest edition of The New Whistleblower’s Handbook brings the most comprehensive and authoritative guide to exposing workplace wrongdoing up-to-date with new information on reward laws, compliance programs, and new rules covering wildlife, foreign bribery, auto safety, government, and ocean pollution whistleblowing. It also includes a new “Toolkit” for international whistleblowers.
“Corruption is an insidious plague that has a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism, and other threats to human security to flourish.” So wrote the UN Secretary-General in the official introduction to the United Nations Convention against Corruption. Since the Convention’s approval by the UN General Assembly in 2002, it has been ratified by more than 140 countries, including the United States, South Africa, India, the United Kingdom, and Russia. The Convention not only mandates that each signatory take strong steps to combat corruption but also explicitly recognizes the importance of protecting whistleblowers as a tool in fighting corruption, so says Kohn in The New Whistleblower’s Handbook.
A prime example of how the “Toolkit” for international whistleblowers can and should work, is exemplified in a recent case and story of Mexican newspaper reporter Candido Rios Vazquez. Rios was at least the ninth journalist killed in Mexico so far this year. The spate of killings, which have targeted some of the country’s most prominent and respected reporters, has prompted international outcry, with human rights advocates and American officials pressing President Enrique Pena Nieto to do more to protect journalists.
Rios, a classic case of being a whistleblower, denounced a suspected corruption network in Hueyapan de Campo, accusing several officials of illegally using government money and cheating in past elections. Rios paid for that with his life! Possibly an incentive for other journalists in Mexico, who have been considered whistleblowers, is the fact that the Commission awarded a non-U.S. citizen $30 million for turning in a corporation that paid bribes to foreign government officials, as indicated by Kohn in his book.
In a recent phone interview with Kohn, this writer questioned him as to how best to utilize the International “Toolkit” that he writes about, and what law might be appropriate in the case of Candido Rios Vazquez and other journalists in Mexico that have put themselves in the position of being whistleblowers. The author indicated to me that the Foreign Corrupt Practices Act (FCPA) might apply in this case.
This essential guide by Kohn explains nearly all the federal and state laws regarding whistleblowing, and the step-by-step bulk of the book presents thirty must-follow rules for whistleblowers – from finding the best laws to the dangers of blindly trusting internal corporate “hotlines” to obtaining the proof you need to win the case.
Stephen Martin Kohn, a partner in the law firm of Kohn, Kohn, and Colapinto, is one of the leading whistleblower attorneys in the United States and is the executive director of the National Whistleblower Center. Since 1984 he has successfully represented numerous nationally recognized whistleblowers and won the largest reward ever paid to an individual whistleblower by the US government ($104 million), which makes the author eminently situated and qualified to write this groundbreaking book. He is regularly consulted by Congressional leaders for help in drafting whistleblower laws. Kohn is also the author of several legal books on the subject.
In The New Whistleblower’s Handbook, readers discover:
· The power of whistleblowing, which is statistically the number one source of all fraud detection and the highest form of citizen empowerment;
· The difference between “whistleblowers” and “leakers”;
· How federal employees can blow the whistle on the new administration – the options they have, and how they can be effective;
· Why rewards for whistleblowers are the key to success, helping put the wrongdoers on trial;
· How whistleblowing has changed because of ways to report anonymously – allowing whistleblowers to hide their identities, escape retaliation, and obtain rewards;
· How the National Whistleblower Center is working to clarify the rights of wildlife whistleblowers, offering a special online confidential reporting process (located at www.whistleblowers.org/wildlife);
· While international whistleblower laws are weak or non-existent, U.S. programs are the best resources available to citizens from around the globe – if we can figure out U.S. jurisdiction, we can help foreign whistleblowers as well.
This comprehensive and well researched and documented book by Kohn is an invaluable tool and guide to anyone finding themselves in the crosshairs of retaliation as a result of their whistleblowing. Designed as a crash course for potential whistleblowers, this step-by-step manual outlines the most up-to-date laws – revealing how to qualify for rewards, how to protect yourself from retaliation, and, of course, how to win your case.
In this provocative and well documented book, Kohn gives insight on “Whistleblower” Web Sites/Wikileaks, specifically stating: “Various organizations sponsor websites or other services that solicit whistleblowers to disclose confidential information anonymously. These sites often claim that they can protect the identity of their sources. But leaking information through these services is extremely risky and can be counterproductive. There are numerous reasons whistleblowers should be very wary of these sites.”
Kohn gives the celebrated case of Chelsea Manning as an example, who leaked information to Wikileaks, and when he was discovered by our government was sentenced to 35 years in prison. This is just one example of the plethora and wealth of information and insight that the author provides in The New Whistleblower’s Handbook.
The author reveals in this book how politicized the U.S. Merit Systems Protection Board (MSPB) is, an agency of the federal government that I have had personal experience with, specifically stating: “The Whistleblower Protection Act (WPA) permits employees to initially seek protection from the Office of Special Counsel (OSC) or the Merit Systems Protection Board (MSPB), depending on the type of adverse action at issue in the case and the status of the employee victimized by the retaliation. Kohn gives extensive instructions in The New Whistleblower Handbook on how to obtain redress for perceived wrongdoing and retaliation through the U.S. Merit Systems Protection Board (MSPB).
Myself, a former Chief of Contract Data Control and Communications with the U.S. Department of Defense, and currently a member of the Coalition for Change (C4C), a Washington DC based national organization of past and current federal employees, I know from whence the author speaks. I found myself in the crosshairs of retaliation for my whistleblowing activities. As a matter of fact, members of our C4C attended and participated in the recent Whistleblower Summit in Washington DC.
Tanya Ward Jordan, the founder of the Coalition for Change (C4C), indicated to me that she first came to know the Kohn brothers in her work with Dr. Marsha Coleman-Adebayo on the "No Fear Act", and that they are all affiliated with the "Make It Safe Coalition", and they participate in the WPA Summits each year. Kohn is pictured here with Michael McCray, and Tom Devine of GAP seated.
The author indicates in The New Whistleblower’s Handbook that based on objective empirical evidence, statistics, and studies, it is not surprising that in 2006 Congress looked toward the False Claims Act to model its IRS tax whistleblower program, and in 2010 looked at both the False Claims Act and IRS laws to model a whistleblower reward program covering the publicly traded economy and foreign bribery. On June 21, 2010 the Dodd-Frank Act was signed into law, which included two new reward-based laws covering securities fraud, commodities trading fraud, and foreign bribery. These laws contained enhanced confidentiality provisions (including for the first time, a procedure permitting whistleblowers to file anonymous complaints to the government) and set the rewards at 10 to 30 percent.
The partners of Kohn, Kohn & Colapinto contributed extensively to the Dodd-Frank Act rulemaking proceeding to ensure that both U.S. citizens and foreign nationals would be protected under the law.
In further regard to the aforementioned Bradley Birkenfeld story, in which a whistleblower won a reward of $104 million, Kohn outlines it in his book in a way that is salacious and reads like an espionage novel. Bradley Birkenfeld was a Swiss banker with inside information as to how the largest bank in the world, the Zurich-based UBS, had an illegal program of more than nineteen thousand Americans, all of whom held nondisclosed and secret accounts in Switzerland for which they did not pay U.S. taxes. Although Mr. Birkenfeld was a U.S. Citizen, there is nothing in the law that requires whistleblowers to be U.S. citizens. Any “individual” can provide information to the IRS, regardless of his or her country of citizenship.
Birkenfeld’s disclosures triggered the largest successful tax fraud prosecution in world history. The results were staggering, and the power of whistleblowers to change the world was affirmed. Here is the story persuasively and with an air of mystery told in Kohn’s book:
It all started when Bradley Birkenfeld, a banker for UBS, turned over documents proving that UBS served approximately twenty thousand U.S. clients, all of whom had illegal and undeclared bank accounts designed to hide assets from government review and thus avoid paying taxes. Based on this disclosure, UBS was forced to enter into a deferred prosecution agreement with the United States. In exchange for avoiding criminal charges, UBS paid a $780 million fine and turned over information on 4,450 U.S. clients.
Kohn further points out in The New Whistleblower’s Handbook that this transaction involving UBS triggered the largest individual reward given to a whistleblower. The IRS awarded Mr. Birkenfeld $104 million under the whistleblower reward law. That award had worldwide ramifications, as taxpayers with illegal offshore accounts realized that their own bankers could become millionaires by turning them in to U.S. authorities. The “trust” needed to make an international secret banking program was undermined. Any participant in that illegal program could become a whistleblower – regardless of the participant’s own country’s domestic laws (or lack thereof) and despite the fact that he or she may have personally participated in the secret banking system.
Mr. Birkenfeld’s whistleblowing not only forced UBS to pay a large fine but also forced UBS to agree to turn over the names of the U.S. citizens who held illegal bank accounts in Switzerland. This concession radically undermined the concept of Swiss banking secrecy. Switzerland had boasted for decades that its domestic laws protected the identity of U.S. account holders, but because of Mr. Birkenfeld’s disclosures, secrecy could no longer be guaranteed. As explained in the publication swissinro.ch, “The U.S. had long suspected Swiss banks of harboring U.S. tax cheats. But Swiss banking secrecy made this impossible to prove. That changed when former UBS employee Bradley Birkenfeld came to the Department of Justice with strong documentary evidence in 2007.”
The $104 million reward, in combination with the mandatory disclosure of account-holder names and significant sanctions imposed on the banks, caused U.S. tax cheats with assets hidden around the world to panic and rush to take advantage of a tax amnesty program established by the IRS. The amnesty program was simple. Turn yourself in, pay fines, penalties, and back taxes; and in exchange you could escape criminal prosecution and keep your identity secret. If you did not turn yourself in, the IRS promised to aggressively prosecute everyone who did not turn themselves in – and seek higher fines and penalties.
The author indicates in his book that Birkenfeld did not go unscathed through his whistleblowing, as he lost his job, was prosecuted for tax violations by the U.S. government and had spent almost three years in prison. Kohn points out that; “Birkenfeld was a poster child of how whistleblowers who try to do the right thing can be utterly destroyed.”
This begs the question, and especially considering the current and ongoing investigation by Special Counsel Robert Mueller in alleged collusion by the Trump Administration with Russia, would Mueller utilize similar tactics as with UBS to go after former Trump campaign manager Paul Manafort and others, as it has been alleged that they have hidden ill-gotten gains in Swiss and other offshore banks?
It is interesting to note that the author gave an interview on CNN in regard to the alleged whistleblowing of former FBI Director James Comey against President Trump, in which Kohn stated: "When you are blowing the whistle, as Comey is alleged to have done, he is constitutionally protected." View CNN interview here.
Significant in The New Whistleblower’s Handbook, is Kohn stating: “Who are these whistleblowers? Sometimes they are people you read about with admiration in the newspaper. Many others choose to be anonymous or confidential. Whistleblowers are workers performing their jobs. A pipe fitter from Aiken, South Carolina, who complained about illegal drug sales at a nuclear weapons facility was fired but won back his job. A technician from Wilmington, North Carolina, who reported radioactive contamination on her workbench. Consequently, she lost her job and never again worked in the nuclear industry. In New Jersey a drug company executive exposed fraud in sales to the federal Medicare program. As a result, he obtained a million-dollar whistleblower reward for ‘doing the right thing.’”
This is truly a remarkable book and expose about doing the right thing, a book that I highly recommend for so many profound reasons.
Dennis Moore has been the Associate Editor of the East County Magazine in San Diego and he is the book review editor of SDWriteway, an online newsletter for writers in San Diego that has partnered with the East County Magazine, as well as a freelance contributor to EURweb based out of Los Angeles. Mr. Moore is also the author of a book about Chicago politics; “The City That Works: Power, Politics and Corruption in Chicago”. Mr. Moore can be contacted at firstname.lastname@example.org or you can follow him on Twitter at: @DennisMoore8.