Field Notes on Regulatory Capture, Part I

Part I: Welcome to my personal hellscape of conflicts of interest, obstruction, & arbitrary denials of due process

May 23, 2022

*The Good Place, Copyright NBCUniversal Media, LLC*

Overview

Agency Capture

In the U.S., regulatory agencies (like the EPA, NLRB, or SEC) can become dominated by the industries they are charged with regulating. Economists describe this as “regulatory capture.” Sometimes capture occurs through a “revolving door” where employees rotate between the private and public sector, and industries unlawfully promise higher paying jobs if the agency employees make regulatory decisions in favor of the business. The influence of heavy lobbying can also coerce agencies. When an agency is “captured,” rather than acting in the public interest, an agency instead acts in ways that benefit the industry it’s supposed to be regulating.

The Toxic Dump

As many of you already know, my Apple Inc office in Sunnyvale, California sat atop a two-mile lake of poison. The lake was a cocktail of hellish chemicals, but predominantly the incredibly toxic TCE. There was so much of it, and so close to the surface, the chemicals had been forcing themselves up into the buildings in the area as they broke down and vaporized, which in turn led to the humans in those buildings breathing it in & becoming ill. My office was so toxic it was declared a federal Superfund site (the TRW Microwave site, regulated under the CERCLA statute and administered by the U.S. EPA). In 2013, The Atlantic literally called my office a “paved-over environmental disaster zone.” By that point my office was part of the Triple Site, with three large, toxic groundwater plumes merging into a megaplume.

I became a whistleblower after Apple unexpectedly emailed my team saying they wanted to test for “vapor intrusion” in the office, while intentionally avoiding explaining what that term meant or notifying us we were on a Superfund site. (I would later be informed by Apple that I had no “Right to Know”). I raised concerns about the safety of the plan of record for my office and was quickly and severely retaliated upon. I began complaining about corruption & fraud, and was swiftly suspended, and then fired by a interrogator within Apple’s secret police team. This was followed by months and months of harassment, threats, intimidation, and psychological violence (a phrase I first heard from another Apple whistleblower, describing the brutality he suffered from Apple).

The Agencies & Adjudication

Because Apple broke so many laws, I wanted to pursue as many cases as I could for the best chance at winning against this notoriously vindictive and legally abusive company. I was afraid to deal with Apple in court, after hearing many stories about Apple apparently intentionally making the entire experience as miserable as humanly possible, so I decided to pursue the regulatory route.

I currently have open charges with the US NLRB, multiple cases with the California Department of Labor, and I have three open cases with the U.S. Department of Labor for whistleblower retaliation under the EPA/CERCLA, SEC/SOX, and DOL/OSHA. My SOX case is based on my complaints about conflict of interest and corruption.

While Apple was busy flogging me for reporting their safety crimes, I began asking if they were abusing me so severely because the previous CEO of the corporation who created that lake of TCE under my office was now a current member of Apple’s Board of Directors, &/or if because the previous head of the U.S. EPA now reports to Tim Cook. Apple didn’t like that at all.

Captured

In the United States, we often assume large corporations have influence over the government agencies and officials who are supposed to oversee their financial dealings. We may talk broadly about the plutocracy or corruption. We may joke about how megacorps can get away with murder. [Side note, see Astroworld reference below]

The tone of the conversation changes suddenly and dramatically when it shifts from general observation to personal experience. It is now a human being who lost money, reputation, and opportunity.

So, let’s say you’re a worker and the megacorp you worked for did something terrible to you. You decide you don’t want to sue them yourself, instead you want the government to represent you and mediate the situation. You, like I did, might expect the government will protect you and help ensure the megacorp has to at least play by the rules.

You look to the government agency as an institution of democracy. You think, surely when it comes to individual employee/employer disputes, the government will look out for employee rights.

The U.S. Equal Employment Opportunity Commission, Part I

I’ve been wanting to write a piece on this for a while. I knew I need to, because I’ve seen so much corruption and so far all the journalists I’ve talked to about it end up having any potential articles about it killed by them, their editors, or the execs. [Side note: Apple’s influence/tyranny over the press is another topic deserving its own treatise.]

A couple of weeks ago I saw something on LinkedIn that is now burned into my mind and forced me to prioritize taking the time to document all of this. I discovered the profile of a man named Bryan Hoss.

Hoss’ “headline” on LinkedIn was “Employee Relations @ Apple | Former EEOC Supervisory Investigator.”

I had to look again and confirm I wasn’t mistaken. There it was, clear as day. Ok, I thought, well maybe he worked at EEOC a long time ago. I scrolled down. Nope. He joined Apple as a “Corporate Employee Relations Business Partner” in November 2021. Directly before that he was an US EEOC “Supervisory Investigator” for three years, and before that a “Senior Investigator” and “Investigator” for another four years, even serving on committees on behalf of the EEOC. Hoss’ most recent title was “Intake Supervisor for the San Francisco District Office,” which would have included the San Jose office and local Apple cases. An EEOC press release in 2019 noted Hoss had personally investigated a case, so he was actively investigating cases as well.

I had filed a charge with the US EEOC against Apple in August 2021, but at that point I was planning to sue Apple in court. Before you can sue under EEOC governed statutes, you need a “right to sue” letter from the EEOC. I submitted my charge, completed the interview, and received my letter. However, I later decided that based on previous horror stories, I wanted to be no where near Apple in a court room. So, I dropped the employment discrimination case & simply tweet about the inappropriate, discriminatory, illegal, & abusive conduct towards me instead. It’s also cited in my other complaints as well, since Apple was supposedly “investigating” these complaints when they fired me. Spoiler alert, instead of investigating my complaints, Apple was investigating me.

As of November 2021, Hoss now works on the same Apple employee relations team that retaliated against me to the point of violating federal corruption statues (SOX/Enron).

Hoss likely already applied for a position with Apple when he would have triaged and supervised my EEOC complaint against the very company he was seeking a employment at. In the words of John Oliver, cool.

We’ll come back to Hoss in a moment.

The U.S. National Labor Review Board

I filed my first NLRB charge against Apple on August 26 2021. I received a letter confirming my case and within a few days an NLRB investigator reached out. He took my first affidavit on September 10 — the day after Apple fired me. At the beginning, I didn’t know much about the NLRB or NLRA. However my investigator was frequently saying things that did not sit well with me.

For example, my NLRB investigator refused to allow me to provide any evidence or witnesses in my case. He told me previous Big Tech cases had been ruined when employees provided evidence and the company then claimed that evidence was confidential. So, he told me, only Apple gets to provide evidence. I’m was in law school. I knew this was an insane thing for him to say. I cannot explain why I didn’t immediately escalate.

The investigator also tampered with my testimony as a witness. I provided my oral testimony and he was documenting it in an affidavit for me to sign. During this process, Apple hired the Trump University lawyers to send me harassing emails claiming I violated my confidentiality agreement. They pointed to my protests of having my ear canals scanned, and my complaints about their face Gobbler app that hijacked my phone to record secret videos and photos of me constantly. [Side note: Travis Scott just hired that same firm, O’Melveny & Myers, to defend him related to the Astroworld mass causality event, which was sponsored and live streamed by Apple].

I called my investigator after I received the ear canal letter, complaining of even more harassment from Apple. Instead, my investigator quietly added a section into my affidavit, positioned as if I testified to him before I received the emails from Apple. He wrote that I said the only reason I can think Apple might justify firing me other than my protected activity was the ears & Gobbler stuff. He made no mention of Apple’s email about it.

I protested & asked him to remove his additions as they were irrelevant unless he also added the context of Apple’s post-termination emails. I said if you keep that new section, we should add a section describing how they them emailed me about this and how I do not think what I did was wrong. He refused.

My investigator told me Apple will “use it against me” if I edit the document now. He told me to only make edits if anything was factually incorrect. After receiving that email from Apple, I did suspect Apple would use those things as their bogus justification, so I decided to stop fighting him. His addition was misleading, but not “factually incorrect.” Exploiting my vulnerability, he convinced me it would be worse for me to fight him. Out of fear, I signed the affidavit. This may have actually been been a federal crime: intimidating a witness to alter testimony.

I learned later that there was nothing stopping him from editing the affidavit based on my concerns and that it was extremely unlikely that Apple could ever access the drafts. He lied to me.

Looking back, the only rationalization I can find as to why I went along with the investigator for so long, is the concept of “institutional betrayal,” which I will discuss more in the conclusion. Briefly, it would cause me moral injury to admit to myself an institution chartered to protect my rights, could be weaponized to simply cause me more harm. To reckon with that, you have to surrender part of your belief in democracy. So, I proceeded in denial through most of 2021.

My investigator had quirks too. He said he personally did not believe in affirmative action & claimed the Regional Director did not either. He told me he was moving to the Southern US because he was “tired of all the ‘woke’ shit’” in the San Francisco Bay Area. He told me he had a Nixon bumper sticker on his car. I asked him how, there was no way anyone was producing Nixon bumper stickers in 2021. He said he made himself.

In September, after re-reviewing Apple’s employee policies while taking Labor Law, I told the investigator that I believed most of Apple’s employee handbook appeared to be unlawful. I told him I wanted to add it to my charges. He told me, without seeing the policies, that Apple’s policies are legal under “Boeing.”

He told me not to file charges, but I did anyways. After which, I received a very annoyed phone call from him for “catching him off guard” because “he didn’t’ know I was filing the charges.” He also forced me to resubmit my charges without my written complaints attached, which had been drafted in partnership with an expert labor activist, detailing exactly why Apple’s policies were illegal. Once again, he did not want me to submit evidence, or written complaints, or to provide witnesses.

Things completely swerved out of control this January. I had been complaining for sometime now about ongoing federal witness intimidation & retaliation by Apple (including threats of violence). I asked how I can report Apple to the US DOJ. He told me: he didn’t know, didn’t think there was a way, and to drop it.

I later learned these agencies have direct connections to the Department of Justice to refer these types of issues and to request assistance.

Finally, in early January, I decided to file the charges against Apple for the harassment, despite his protest. I filed them to NLRB, Dept of Labor, and Dept of Justice.

I expected another annoyed call from my NLRB investigator about the NLRB charge, like with my policy charges, and indeed, he protested the charge. He pointed to some of the parties and insisted I don’t name them, because he said “it will make his job harder.”

This is when I woke up.

I protested. I told him I’d do it anyway. We argued for some time. He and Region 32 then apparently did unbelievable things to me, which I’m currently prevented from telling anyone about (other than via court/agency testimony), due to an illegal gag order which has deprived me of both my free speech and due process rights. It’s been devastating.

I escalated to the NLRB OIG in January about my investigator’s behavior, but also about an abundance of conflicts of interest in the Region 32 office. The director had to recuse herself from my case, as well as the supervisor reporting to her, both due to conflicts of interest with Apple. Further, the other investigator in the region was actively applying to join Apple’s employee relations team. So, she had to recuse herself from investigating my newest charge. My investigator had told me, I must keep this all secret; it’s confidential.

Now the NLRB sounded as corrupt as Apple.

I emailed the NLRB Inspector General’s office and told them all of this & pled for help. Moments later I received a phone call from the Nixon Bumper Sticker investigator again and he urged me to drop/modify my harassment charge (which would reduce Apple’s liability). I told him: no, absolutely not.

Then, only after I refused his requests, he informed me that he believes my case doesn’t have merit. He says that Apple’s claims about ear canals and Face Gobblers, as wild as they may be, are valid because I’m an adult, and I consented to a contract, and then broke that contract (see: Lochner v NY).

I remember literally yelling something like:

“Am I a fucking 1920s New York baker!? “

As for my policy charges, he told me that he likes the pro-business Boeing precedent and he thinks all of Apple’s policies should be upheld. He tells me that because he begrudgingly has to send my charges to Division of Advice in Washington DC because “I made the cases so high profile” that he thinks General Counsel won’t agree with him and will in fact find merit on all my charges under Biden administration labor policies. He complains more.

I get off the phone and email the Inspector General again to share this as well. I email the investigator informing him I reported him to the OIG and request all further contact be written. He resigns from or is removed from my case the next day.

I then demanded an investigation by the NLRB OIG and to have my case transferred to a different region. I eventually get confirmation of an investigation but it is unclear if any action was taken against the investigator at all. As far as I know, OIG also refused to investigate Region 32 overall.

It took much more persistence to get my case transferred. Even once I got a new investigator in another region (Region 21 in LA), the investigator’s report was still to go back to Region 32 to make the decision on merit. I kept grieving to the OIG until I received a phone call from an Assistant General Counsel to hear “my side of the story.” Apparently, Region 32 had begun grieving about me after I began protesting the first investigator’s misconduct.

Once I explained what happened and provided evidence of my exchanges with Nixon Bumper Sticker, I received an apology from NLRB leadership. They assured me my case would be fully transferred to a different division, I would be able to provide evidence and witnesses and I could take additional affidavits to fill in the gaps from what the first agent tried to omit and mislead. I spent the last few months doing all of that. I also FOIA’d NLRB on the conflicts of interest and received confirmation of the recusals.

However, Region 32 is apparently still hanging on to my case with white knuckles. They refused for some time to allow it to be transferred. (Why did they care so much, I wonder?) The case is still formally listed as a Region 32 case. It appears when I get a finding of merit, I’ll probably be forced into another brawl with Apple’s Region 32 wanting to litigate my cases…. into the ground, I’m sure.

Not to mention, one of the three attorneys Apple immediately hired to defend them against my charges, Syed Mannan, previously served as a law clerk at the NLRB under a current NLRB board member and currently seated NLRB judge. He also served as a law clerk at the EEOC, under the current chair. Apple also openly lobbied Congress about “NLRA issues” at least once.

As for the gag order, I’m currently appealing but it’s already cost me nearly $5,000, an enormous amount of time, has put my ability to become a practicing lawyer at risk, shows up on employment and renter screening background checks, and has been actively used to assassinate my character. The appeals hearing is currently scheduled for 8:30am on my 36th birthday. I also had to remove my first lawyer and have an open grievance with the Washington bar about him - I have reasons to be concerned my own lawyer may have been acting against me, on behalf of Apple.

The U.S. Department of Labor

There’s an entire story about suspicious behavior by the U.S. Department of Labor in their initial handling of my cases as well, but I’ll save that for another day. For now I’ll just say, I also discovered that following my complaints about Superfund safety & labor compliance in 2021, Apple retained a new lobbying firm led by Paul Brathwaite, a Clinton administration Department of Labor official, who also spent 10 years at the Podesta Group before starting his lobbying firm. Brathwaite left Podesta Group as the firm became a target of special counsel Robert Mueller’s probe into Paul Manafort and Russian meddling in US elections. Brathwaite is also lobbying for Amazon as well.

The U.S. Environmental Protection Agency

There’s an entire movie and/or volume of books, about the corruption within the U.S. EPA related everything I went through at Apple. I will be publishing much more on this shortly, including the EPA’s apparent suppression of documents confirming Apple & Northrop Grumman were subject to formal, mandatory vapor intrusion-related inspections of my Apple office following my disclosures, they were subject to new oversight requirements, and there was a terrifying revelation about the contamination under the building. The community involvement coordinator and the remedial project manager were both taken off the site, new employees assigned, and one of the removed employees left the US EPA completely.

Stay tuned.

The U.S. Equal Employment Opportunity Commission, Part II

Perhaps the most disturbing thing about the EEOC/Hoss revelation what how unconcerned Hoss was about broadcasting his use of the revolving door. Around October 2021, Hoss posted on LinkedIn that he was leaving the EEOC for “a new opportunity in the private sector,” and then posted again shortly after saying:

“I'm excited to announce that I have joined the Employee Relations team at Apple! I am beyond grateful for this opportunity, and so I would like to say thank you again to everyone who helped me to get here. I promise to make you proud.” - Bryan Hoss via LinkedIn

I was already curious if Hoss received “help” to get that role, so it was convenient he admitted it publicly. If there was need for any further validation of foul play, the “likes” and comments on his posts sent me to the sunken place.

Numerous EEOC investigators and leaders publicly congratulating him, and over a dozen Apple employee relations employees and engineering managers welcoming him. One Senior EEOC investigator, also based in San Francisco, commented that Hoss joining Apple was a “phenomenal gain” for Apple. An Apple recruiter commented to Hoss “You know I’m your biggest fan!!! I am over the moon that you are finally at Apple. Wahoo!!!” An Apple Business Affairs manager commented, “Yay !!!! So glad this came back around! Welcome to the fam!”

Wait… what? Finally & back around? How long was Hoss trying to join Apple?

I submitted FOIA #820-2022-008282 to the EEOC on May 7 2022 notifying them what I had discovered, & requested information on how they planned to manage all the confidential information he had from Apple employees, now that he’s over in Mordor. I look forward to the pile of blank, black construction paper the EEOC replies with informing me they redacted all sensitive information.

In the meantime, after the initial publication of this article, at least one ex-employee came forward confirming Hoss handled her case, and she had complained for some time prior that she worried Apple had used EEOC to further retaliate against her.

Lobbying

Apple is a corporation with tremendous power and means: it has more than 150,000 employees, a market cap of $2.23 trillion. Last year Apple spent $6,500,000 on lobbying and in 2022 Apple’s already spent at least another $2,500,000. Similarly, Northrop Grumman (previously run by, now Chair of Apple’s Finance & Audit Committee and Board Member, Ronald Sugar) is a huge weapons manufacturer and defense contractor who spent $10,673,000 last year on lobbying.

Apple’s “Government Affairs” team manages lobbying efforts and was run by a mix of Catherine A. Novelli from 2005-2013, Cynthia Hogan from 2016-2020, and Lisa Jackson from 2013 to current. There was never a formal announcement that Jackson took over lobbying, but even before Hogan left, the entire lobbying team was moved from under General Counsel, to now under Jackson. It sounded like it happened around 2018-2019, as I heard complaints of confusion about it during my 2019 legal internship.

Beyond already seeing Apple’s corruption and conflicts of interest first hand, the more I dug into Apple’s revolving door, the more I screamed. (Literally… My dog was very concerned). For example, before joining Apple, from 2009 to 2013, Hogan served as deputy assistant to the President and counsel to the Vice President of the United States (see, Al Gore, who is also currently an Apple Board member). She led the confirmation of Supreme Court Justice Sonia Sotomayor. Before that, she served as the chief counsel of the U.S. Senate Committee on the Judiciary. Hogan led Apple’s lobbying until 2020, when she was tapped by Joe Biden to join his presidential transition team. Great.

As for Lisa Jackson, before joining Apple, she served as the administrator of the U.S. EPA from 2009-2013, appointed by President Obama. Jackson left the EPA in 2013 amid scandals about private email accounts, unexplained shadow accounts (with an alias of “Richard Windsor”), retaliating against EPA whistleblowers, and FOIA avoidance. Upon leaving the EPA, Jackson joined Apple as a Director and accepted a Board position at the Clinton Foundation. She appears to still serve on the Clinton Board, yet at some point around 2019-2020 all mentions of her involvement with the Foundation were scrubbed from the Foundation and Apple’s websites.

Jackson poached a number of her previous staffers from the EPA to join her at Apple, including David Mcintosh (her previous EPA Administrator of Congressional & Intergovernmental Relations, and then Apple Lobbyist, & now an Apple Director managing affairs with China related to Internet Software & Services), Arvin Ganesan (her previous EPA Deputy Chief of Staff for Policy and now Apple lobbyist), and Alisha Johnson (her previous EPA Deputy Director of Communications & Press Secretary, and now her Director of Environment, Policy, & Social initiatives…. who apparently still does hazardous waste PR).

Before Hogan & Jackson, there was Novelli. Novelli worked in the U.S. President’s Executive Office on trade, then joined Apple from 2005-2013, until Obama appointed her the Under Secretary for Economic Growth, Energy, and the Environment through 2017. She now serves on the Board of the National Wildlife Federation. She initiated Apple’s lobbying of the US EPA about hazardous waste in the 2000s.

There’s a short note in her Wikipedia page about Novelli’s husband, Mr. David J. Apol, the General Counsel of the United States Office of Government Ethics (OGE). Apol was then appointed as acting Director of the OGE by President Trump in 2017. OGE oversees all federal government “ethics.” (Did you scream too?)

The NYT reported in 2017 that Apol’s colleagues complained Apol “sought to roll back or loosen ethics requirements on federal employees.” “Mr. Apol has argued that the agency is often too rigid in interpreting conflict-of-interest laws,” his colleagues said.

The departing Director called Apol’s views on conflicts of interest “immediately obviously crazy,” and described Apol’s general approach to government ethics as “loosey-goosey.”
-NYT, 2017

David Apol is still currently the General Counsel of the US OGE, the agency responsible for directing executive branch policies relating to the prevention of conflict of interest on the part of Federal executive branch officers and employees (including all of the federal agencies processing my charges).

When I complained to the NLRB OIG about the NLRB’s retaliation against me on behalf of Apple… the NLRB OIG was reporting up to an agency led by the husband of one of Apple’s long-time VP’s of Government Affairs and lobbying.

This isn’t the good place.

Conclusion

It’s challenging to even attempt to describe the pain felt upon realizing the employer who abused you had also intentionally corrupted the regulatory agencies who were supposed to assist you in seeking justice. You realize the corporation not only disregarded your humanity, but the corporation also planned well-in-advance to prevent you from even being able to properly grieve about and remedy the harm they would later cause.

The two best terms I’ve discovered so far are moral injury & institutional betrayal - terms shared with me by yet another Apple whistleblower trying to find meaning in the wreckage that often overpowers us following blowing the whistle on the Fruit Stand.

Moral injury is the damage done to one’s conscience or moral compass when that person witnesses or fails to prevent acts that transgress one’s own moral beliefs, values, or ethical codes of conduct. This includes failure to be protected by leaders, especially in combat. Moral injury debilitates people, preventing them from living full and healthy lives. The effects of moral injury can destroy one’s capacity to trust others.

While a company may have already harmed an employee emotionally, psychologically, and even physically – when the company weaponizes the institution put in place to protect the employee’s rights – it hurts on a spiritual and moral level. It harms the soul.

Institutional betrayal is potent because it represents a profound and fundamental violation of trust in a necessary dependency relationship. The breach of trust, the unreciprocated loyalty, and the exposure to retaliation are like a knife in the back.

I still cannot properly describe the injuries inflicted upon me by this. Worse, while an employee faces this harm, they are also once again forced to fight the same company on an unequal playing field for their basic rights to even seek justice for the original harms. Even though I now know all of the things I just shared with you, I must continue to fight knowing all of the effort I dedicate to the process may still be subverted to cause me even more harm. I am fighting like hell, knowing I should win, but prepared that I may likely lose.

While agencies attempt to block claims from being filed, sabotage the claims which are filed, demoralize victims, and make us wish we never filed the damn charges in the first place — many simply give up, as it is too much to bear. It seems completely understandable to walk away, considering the pain and frustration of it.

Why even try if you destined to lose? Why try when there’s no point in trying?

That’s the point. That’s why these corporations do all of this. It’s the chilling effect of corruption.

Please go have a friendly chat with your elected representatives. Drop in on regulatory process hearings. Implore journalists and editors to tackle the politically unpopular stories. Submit FOIA requests and share the results. Support whistleblowers. Reject plutocracy.

Please try to help take some of the burden off of those who are already collapsing under the weight of an entire national government that is often adversarial to their pursuit for justice. We need help.

Read Part II here: