P is for Peril

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Copyright © 2018 by Barney Rosenberg
President, Ethics Line, LLC™
barney@ethicslinellc.com

We’re friends so I can tell you about the time I almost got arrested.  It was a typical weekday morning.  I was driving to my office with nothing in particular on my mind except getting there through the city traffic.  It was about 6:15 AM when my mobile phone rang and a tentative voice said: “Um, Barney, where are you now?”  I explained that I was heading to the office and asked, “What’s up?”  The caller asked, “Is there any way you could swing by the factory first?”  I assured him that I could and asked again, “what’s up?”

I don’t remember if I pulled over and stopped or speeded up to get there faster because what he said had both effects on me.  “Well, there are 60 armed Federal agents with a search warrant, all sorts of reporters, and 3 TV satellite trucks.”  Over the pounding of my heart, I did hear myself say “I’ll be right there!”  15 minutes later I was.  And I didn’t get home until 11:30 that night!

Let me diverge for a minute and tell you that this is the “P is for Peril” part of the story!  Only the P is for 3Ps.  You see, I have always maintained that we are better at solving our problems than the 3 Ps: the Police, the Press, and the Prosecutors.  But someone has to tell us there’s a problem!  If they tell any of those 3, solutions become much harder.  In this case, all 3 were involved.  The 60 armed Federal agents were from at least 4 different law enforcement (investigative) agencies.  The Press, obvious. Print and broadcast.  And the Prosecutor, lurking in the background, had issued the search warrants.

And the peril is: huge fines and penalties; suspension and debarment from future government business; long stretches of time wearing an orange jumpsuit in a federal prison (not a country club); oh yes, and your reputation? Forget about it.  That’s why we fight so hard, especially when the accusations are false!

When I got to the factory, I found a spot in the employee parking lot and made my way to the General Manager’s office as fast as I could.  I found him and in my fakest, calm voice asked, “So where are they all?”  He showed me the search warrant – a legalistic and totally intimidating document, signed by a Federal judge with the ability to lock people up who got in the way.  Our GM explained what he thought was going on.  And I said, “OK, show me.” Together, we walked out to the factory floor.  But before we did, I made a short, important phone call.

On our way to see the extent of the “damage” we walked past a small office where one of our supervisors was sitting with two rather large men.  I had watched enough TV shows to know that they were cops.  Only these cops were Feds.  Side note:  I live in Hollywood and there really is a company called “Central Casting”.  FBI agents are all out of Central Casting.  The men are 6’2” tall; invariable handsome; well-educated; smart; armed and dangerous!  The female agents…maybe just a few inches shorter!

I stuck my nose into that office and asked “What’s this about?” and to our supervisor I said, “Why aren’t you working?”  At that moment, I could feel the testosterone level rise in the veins of the Feds, who took one look at me and in their nicest TV voices said: “Who the hell are you?”

I calmly (yeah, right) said “I am this company’s Vice President of Litigation and Investigations.  I know that you are here with a search warrant and I will help you with that.  But you do not have the right to lock my colleague in this room and interrogate him.  If you have a problem with that, call the United States Attorney downtown.  I just got off the phone with him and he’s expecting your call!”  And to my colleague I said,  “Get back to work!”.

I don’t know how high my blood pressure went as the Feds reached in the direction of the government issued side arms (handguns) but I was sure I would be in a jail cell shortly.  I spoke up and said, “Gentlemen, shall we get started.  I can help you with that search warrant now.”

I didn’t go to jail.  With some help, they did execute their search warrant but didn’t find what they thought they would find.  The TV trucks lost interest and shut down the antennas. The reporters moved on to the next big story.  The 60 armed agents vanished in time and order was restored.

The headlines the next day were: “X is a bad company that does bad things!”  You see someone told the Feds that we had failed to perform a critical test on key components of military hardware.  Only nobody told them that the test was called out in an early draft of the specs but deleted as not required in the final, signed contract documents.  And there never was a retraction saying “Apologies, X is a good company that makes great products to protect us all.”  But those were tough times in our business.  Bounty hunters could blow the whistle on their company and grab a share of the money the government recovered in the case.  I could go on about qui tam litigation, but not here.

A few years later, I found myself on a panel with two other lawyers experienced in the dark arts of “White collar criminal defense.”  One of them was our Prosecutor of factory search warrant fame, an Assistant United States Attorney.  He was not armed but was still dangerous.  At one point in the panel discussion, he turned to me and asked, “Barney, I never understood, with all the cases we were looking into, why your company never pleaded guilty.”  I turned to him and said in my most professional and only mildly pissed off voice “Did it ever occur to you that we didn’t because we weren’t?”

Needless to say, it had never crossed his mind!

There are many lessons here.  The one I rely on most often is that we are better at solving our problems than the 3Ps, but we have to know about them.  That’s why we have (or hope we have) the kind of managers people can talk to; and policies that protect people from retaliation when they raise their hands to voice questions or concerns; and hotlines when all else fails.

That’s why you have heard me say “Ethics is a team sport.  We are all in this together!”

4 COMMENTS

  1. Great story – raises a number of important issues. How prepared are we all for dawn raids?

    • Thanks Robert. Then there’s the visit that “the authorities” pay to an employee’s home around dinner time. They knock, show their badges, and ask if the may come in. They sit on the sofa and allow their coats to fall open, revealing their holstered hand guns. “Mr. Jones, this is a lovely home and you have a beautiful family. It would be a shame to lose it all! Now would you like to talk to us?” We need to prepare employees for for these difficult times because we live and work in them!

  2. Over the past several years, I have attended many compliance events at the local, regional and national level. I read the Compliance and Ethics Blog every morning. And during this time, I have noticed a theme promulgated by many in our community; that of Government oversight entities as the bad guys. Authors, instructors, presenters and colleagues alike tell and retell tales of the Federal Government barging through the doors bearing guns; there to shut down critical access to operations, and take away personal freedom.

    Today’s agents face an increasingly dangerous world. I have been on countless search warrants and shown up around dinner time too many times to count. And the overwhelming number of times, someone at the location had a concealed weapon or outstanding arrest warrant for some unrelated matter. Those “well educated, smart FBI agents” know they can’t lock people up and interrogate them. Agents gather people in a central location to ensure their own safety and the safety of those present. That detention usually doesn’t last very long unless there is a legitimate reason, and people make their choices to talk or not. I have never seen anyone get locked in a room and interrogated.

    I understand it’s in vogue to be anti-police at the moment, but I believe the safety of our law enforcement professionals is paramount. They need to go home at the end of the day. They should therefore act accordingly in a professional manner to ensure that goal is met.

    So why does our industry go down this road? I don’t have that answer. Although the intrigue of the story captures our attention during a long day of training, and perhaps a defense attorney can convince you that you better call them right away, as opposed to cooperate. “Be afraid, be very afraid,” tends to be the message. I beg to differ. Certainly the law enforcement community, like every industry, has its share of unprofessional actors that did indeed stretch or abuse that authority, causing fodder for tales and eroding the public trust. But those occurrences are very few and far between. For every tale you have heard about aggressive law enforcement tactics , there’s a flip side of the coin.

    When I see the names Federal and state oversight entities, I think of the women and men who protect us from fraud, waste and abuse. I feel their mission and values are much more in line with my mine, as opposed to someone who tells me how to push back and distrust when it comes to oversight. And that does not mean I am in their back pocket, willing to accept their findings at face value and concede at will regardless of merit.

    In his presentation “What Every Leader Should Know About Compliance and Compliance Programs, Roy Snell clearly articulates where we should be coming from. Compliance Officers are neutral, unbiased, and unconflicted. I could not agree more.

    • That’s a legitimate counterpoint Gerald. And that’s what makes SCCE such a valuable forum.

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