[2017] The Whistleblower Onslaught

by David P. Warren

  Edmonds leaned forward in his chair. “You understand that you can be charged for withholding information in connection with an official investigation?”

  “Now you are threatening me based upon not providing information I don't have?”

  Sandoval said, “We just want you to know that we're serious and that we expect you to provide information relevant to our investigation. If you don't, we will come after you. Now, what do you know?”

  “Can't think of anything I can share at this point. If something comes to me, I'll give you a call.” Lee stood up and started away. He stopped and turned back and said, “One more thing. You dragged me to a coffee house to threaten me and didn't even buy me a cup of coffee. I would have expected a little more courtesy for my tax dollars.” Lee turned and walked out.

  “Interesting guy,” Sandoval said. “Come on, let's go.”

  When they climbed into the car and pulled away, Sandoval said, “Check the GPS in the vehicle, and let's see where he's going next.”

  Edmonds played with the device with a puzzled look on his face.

  “What?” Sandoval asked.

  “It doesn't seem to be working right.” He fiddled with it for a few moments and then said, “Shit.”

  “What?” Sandoval asked again. “What have you got?”

  Edmonds shook his head. “The GPS is exactly where we are. We are following us.” He chuckled. “The son of a bitch not only found the bug, he planted it on us.”

  Sandoval smiled. “Not bad.”

  Chapter 32

  August 23, 2016

  Kevin and I arrive at Jake Billings's office fifteen minutes before the scheduled start time for day two of the mediation. Within two minutes, we are installed in conference room three with coffee in hand. Jake joins us with warm greetings. “Welcome back, Mr. Walters.” He extends a hand, and Kevin shakes it. “Morning, Scott,” he says, and we also shake hands. Jake sits down and rubs a hand through his thinning hair. “You may have heard that they want to start us off a little differently today. Mr. Constantine wants to talk with Mr. Walters. No problem if lawyers are also present.”

  I nod. “We're okay with that plan,” I say. “But there are a couple of other things you should know.” I sit back in my chair as Jake silently waits for me to continue. “You remember our discussions of the man who calls himself Mr. Valentine?”

  “I remember,” Jake says.

  “We now know who he is.”

  Jake's eyes widen. “How did you get to that?” he asks.

  “A good investigator,” I say, and then add, “And that's just half of it. We also determined who at Consolidated hired Valentine to blackmail and bribe Carl Miller to switch county records. That information means significant punitive liability for Consolidated.”

  “Who is the guy calling himself Valentine?” he asks.

  “Valentine is a guy who works for a company known to do covert projects, often for certain lobbyist groups.”

  “Covert?”

  “Right. Think Blackwater with no footprint.”

  Billings shook his head. “This gets crazier all the time. We should get this case settled before people start finding bodies in the trunks of cars.”

  “One more thing, Jake. With all of these puzzle pieces now available to us, Consolidated Energy's liability and our settlement demand are both higher than they used to be.”

  “Okay, but before you tell me any new demand, let's hold this meeting so that Mike Constantine can talk to Kevin. I don't know what he is going to say, but Bob Harris told me only that it is critical that Constantine gets a chance to talk to Kevin.”

  I look a Kevin, and he nods. “Let's do it,” I say. “Where do we go?”

  “Let's do it right here,” Jake says. “Give me a few minutes, and I will bring Constantine and Harris back.”

  In a few minutes, Jake enters the room followed by Constantine and then Harris. Jake says, “Mr. Walters and Mr. Winslow, you know Mr. Constantine and Mr. Harris. Vague greeting nods followed by brief handshakes, and then Jake and Harris sit down. Jake says, “Mr. Constantine, you have the floor.”

  Constantine stands at the head of a table, a man who is used to being in charge and controlling a room. He has the studious look of an accountant and the polish and poise of an army colonel. “Kevin, I have some things to tell you. First, I made a mistake. I somehow convinced myself that your demands to make costly fixes to mine conditions were disloyal—some kind of a betrayal of our relationship. It has taken me time to realize that you were making suggestions that you thought were in the best interests of the company.” He lets this settle on the room while Harris stands for the likely purpose of warning his client about giving up information that may come back to bite him. Constantine looks over at him and says, “No need, Bob. I'm going to level with Kevin. I owe it to him. He and I go back, well, forever.” Harris returns to his seat, and Constantine continues, “I want you to come back to work, Kevin. You have good vision, great management skills, and you belong at Consolidated.”

  Kevin responds with, “Is this just a way to end this case or to buy confidentiality?”

  Constantine smiles and says, “I always liked how direct you are. Too many people are scared to talk to me that way.” He shakes his head. “The answer to both questions is no.”

  “I can give it some thought,” Kevin says, not sounding convinced.

  “I am going to tell you something that will let you see that I am sincere. When we were at the first day of the mediation, I heard talk of this Mr. Valentine, who blackmailed Carl Miller into changing records. I had no idea who Valentine is, but I started thinking that someone inside the company might be responsible for hiring this guy. I mean, I couldn't think of anyone outside the company that would have a reason to want these mine records switched. So, I started an internal investigation and quietly probed who might have been involved. My investigative team came up with a name, so I had a one-on-one meeting with the employee. By the end of that meeting, he confessed that he hired this guy to protect the company. I fired him at that moment, and he will face criminal charges.” He drew a deep breath. “I will tell you in confidence that the individual who did was then director level, in charge of the risk department, and had since been promoted to vice president.”

  “Let's cut to the chase. Who are we talking about?” Kevin asks pointedly.

  “Corbin Wilson,” Constantine says without hesitation. There was stunned silence in the room as we drank in the fact that Constantine just told us the secret we planned to spring on him.

  Harris stands and gropes for words. “Michael, don't say any more.”

  “It's okay, Bob. He didn't give away anything we didn't already have,” I reply. More stunned silence, and then I add, “We told Jake we had that information when we arrived. You should know that we have identified both Mr. Valentine and Corbin Wilson. So we have closed the loop for purposes of our punitive damage claim.”

  Constantine says, “So, Kevin, does that mean that what I confided this morning means nothing to you?”

  “No,” Kevin says, “it doesn't mean that at all.”

  I smile and add, “To the contrary, Mr. Constantine, it shows us that you are being forthright. I have no doubt about your sincerity, but the damage was done before we got here today. I think that Kevin and I need to talk at this point.” There are nods around the room, and Jake escorts Constantine and Harris back to their conference room and closes the door as he leaves.

  “That was something,” I say to Kevin.

  “It was impressive, and he's obviously working to get me back, but I still have trust issues. Even if I had a contract, Mike could figure out how to break it or pay it off. I don't want to be vulnerable to that son of a bitch after what he did to me the first time.”

  “I get it,” I say. “I had an idea as Constantine was talking. Maybe a little variation on what we are discussing is in order.”

  “Tell me what you've got.”

  An hour later, we reconv
ene as a group.

  “Thanks for giving us time to work through this,” I say. “We have a proposal. Let me start by saying that with all the information that we have gathered, I believe the case has a settlement value in the area of $7 million.” There are shaking heads on the defense side. “Think about it,” I say evenly. A Consolidated Energy executive hired a clandestine group to blackmail the county's representative into changing records. We can identify both the person who did the blackmailing and the person at Consolidated who hired the organization he works for. How do you think a jury receives that information about the way Consolidated put its self-interest ahead of public safety?”

  There is quiet for a few moments, and then I continue. “This case is about fixing a problem. So, we are proposing that you form a subsidiary whose purpose is to inspect mine conditions and recommend and undertake specific remedies for dangerous conditions, whether or not they have been identified as violations. We would also reach out to the families who were the victims of the explosion with financial support, which serves the employees well and has great PR value.” Around the room, faces were inscrutable. “Kevin would be the president of the new company at a salary that is three-quarters of his former salary and a five-year contract terminable for limited causes. There would be a five-person board of directors for the company. Kevin would be on the board, and he initially designates one other member. Mr. Constantine is also on the board, and he also designates one other member. Those four board members then select a fifth member from within the industry.” I look around at closed expressions. “Consolidated funds the company with $3 million initially and agrees to put in another $2 million over the next five years. There would be a payment of $500,000 to Kevin to cover some of his losses to date, and there would be an additional payment of $350,000 to my firm for attorneys' fees to date.”

  Harris looks unhappy. Constantine is deep in thought.

  “On these terms, we will also agree to a confidentiality agreement concerning the allegations of the case and terms of settlement.”

  Harris looks like he is going to speak, but stifles the comment. Constantine says, “Now let us talk for a while.”

  * * *

  Lee Henry dialed the number and waited for the ring.

  “Becky Sandoval,” the now familiar voice answered.

  “Good afternoon, agent Sandoval.”

  A moment's hesitation and then, “How did you get this number? This is my personal cell phone.”

  “Didn't you give it to me?”

  “I did not.”

  Lee grinned widely. “Well, you have mine, so it seems fair, right?”

  “What do you want?”

  “Agent Sandoval, I meant what I said about believing that you and I are on the same team. We both want to help get to Anders, right?”

  “And?”

  “And I just wanted to update you on some work I had done so we don't duplicate efforts. I met with Martin Chavez, and he really is very ill. Stage four cancer and not mobile, so certainly not working in the past couple of months. Anders did not get his new ID from him, so you can scratch him off your list.”

  “Cute, Mr. Henry. As was planting our bug on my car.”

  “What? Were you bugging me? I didn't even know you had a warrant. That would require a warrant, wouldn't it?”

  “Good-bye, Mr. Henry.”

  “Have a nice day, agent Sandoval.”

  * * *

  After two more hours, we all gather in the same room once again.

  Constantine speaks first. Shaking his head, he says, “We can't create a subsidiary that decides corporate matters. We are a public-traded company that answers to its stockholders, and all has to come through our board. So we are not going to create a new company as we do not think that is the right way to go.” My turn to look inscrutable, and I was doing my best. Turning directly to Kevin, Michael Constantine continues, “Kevin, I think you know how serious I am. I revealed the director who hired, what's his name, Mr. Valentine? I didn't have to share that information today. I did that so there would be no doubt in your mind about my sincerity. I do want you back. I am prepared to offer you a senior vice president in charge of safety at your old wage and a five-year contract allowing termination for good cause only. I will agree to the other terms. We will give you $500,000 to settle the case and pay attorneys' fees of $350,000.” He paused and says, “I want you to return, Kevin, and I am putting it in your hands.”

  Harris interjects, “If we do not reach agreement, we will lay it all out for the jury. We will tell them what Corbin Wilson did, that he did so without authorization, and that Mr. Constantine initiated an investigation as soon as he learned about Mr. Valentine. We will explain to them that Mr. Constantine discovered the identity of the perpetrator, fired him immediately, and turned his action over to the district attorneys' office for prosecution. We will then explain to the jury that Mr. Constantine revealed what had happened to you.” He hands me a letter. “I e-mailed a letter to you this morning explaining it all, so there can be no doubt about the sequencing and your awareness. That said, we do not want to go down that legal path; we want to arrive at a settlement if we can.”

  “I understand your position,” I say, “but if the best case you have is, 'We did it, but we admit it,' you may not get all the empathy from the jury that you are hoping for, because you didn't keep safety as a priority, and you fired Mr. Walters for raising critical issues.” I stop there, but the truth is, the strategy makes sense.

  Kevin looks at Constantine and says, “Michael, let me be blunt with you, the way I could when we worked together all those years.”

  The room grows quiet as Michael Constantine waits for more. Kevin leans forward in his chair and laces his fingers together. He takes a breath and says, “I am disappointed, and I am hurt. You took a significant part of my life away, and you torpedoed all of the trust that we built over the years. Then I was treated like a pariah—like I had embezzled or intentionally injured the company in some way.

  “You said that you won't agree to incorporate a subsidiary. How about if I incorporate, and we will have the relationship you just described by way of a five-year contract with my company. I will work three-quarters of the fifty hours I would work if I was employed by the company, and you pay me three-quarters of the amount we discussed.”

  “What does that get you?” Constantine asks.

  “The ability to serve Consolidated well and build my own company.” He leans forward in his chair, still looking directly at Constantine. “Maybe I wind up having consultancy agreements with others in the industry down the road. You and I both know that there are a number of companies that need help with their safety records.”

  “I'm not sure we're interested in financing a new business. We want you to come back to us.” He shrugged. “I'll talk to the board,” Constantine says. “Give me a half hour.” At that point, everyone except Kevin and I walk out of the room.

  Jake sticks his head back in the room and says, “Maybe we have something here. Stay tuned.”

  As Jake disappears, I say, “I really hope this idea works. It would be great if you could form a company that put safety first and had one big client to get it off the ground.”

  “Exactly. I want to do more than work for Consolidated. I want to monitor and improve safety for as much of the industry as I can.”

  Kevin and I spend the next hour talking about the company he wanted to form. He has ideas about the standards it would employ, the testing and reporting it would do, and even some of the people he would hire for key roles. We even kick around potential names for the company, such as Safety Compliance Corporation or Protective Energy Services. As I listen, I am taken by Kevin's knowledge of intricacies and his enthusiasm for this project. I have never heard him so animated.

  “Kevin,” I say, “I am impressed by these ideas, and I think that this is your calling.”

  “You know,” Kevin says, smiling widely, “I think you might be right. I would really
like to do this.” While we wait for Jake to return with Constantine and Harris, Kevin makes notes about a possible company, and ideas came to him in flashes. He talks about inspectors, organizational structure, and connections to MSHA and counties with oversight responsibilities. Then he talks about how all of this could coerce mining companies to comply with regulations, address violations, and protect workers, and he does all of it with palpable enthusiasm, despite the fact that it has been a long day, and we are exhausted.

  Ninety minutes later, Jake steps into the room alone. After sitting down and searching for the right words, which is not a good sign, he says, “Consolidated does not want to fund a new organization. They are shutting down the idea entirely. That said they are making a final offer of $900,000 to settle the matter outright.”

  “Is this it? Nowhere else to go from here?” I ask.

  “Yeah, I think they mean it. They say it's a take it or leave it deal.”

  We shake hands with Jake and let him know that we would not take the deal. We thank him for his hard work, and, at 9:00 p.m., we leave the mediation without an agreement.

  Chapter 33

  August 25, 2016

  As Lee drove up to the small house, he saw an obese man sitting on the porch smoking a cigarette. He drove past the house and to the end of the block, where he made a Y-turn and parked the car. He watched as the man held a cell phone to his ear and spoke animatedly.

  Burt Snider then ran into the house as Lee watched from a distance. In a few minutes, Snider emerged with a suitcase and walked toward the classic Corvette in the driveway. This guy was in a big hurry to go somewhere, and Lee was sure it had something to do with the call that just happened—he was either chased away or warned off something.

  Lee got out of the car and walked toward the man. Snider saw him and moved faster toward the car.

  “Hold it,” Lee says loudly. “We need to talk.”

  “You got a warrant?”