BILL ANALYSIS SB 650 Page 1 SENATE THIRD READING SB 650 (Yee) As Amended June 7, 2010 Majority vote SENATE VOTE :23-15 JUDICIARY 7-3 ----------------------------------------------------------------- |Ayes:|Feuer, Brownley, Evans, | | | | |Jones, Monning, Nava, | | | | |Huffman | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Tran, Hagman, Knight | | | | | | | | ----------------------------------------------------------------- SUMMARY : Revises the Whistleblower Protection Act (WPA) to treat complaints by University of California (UC) employees the same as those by California State University (CSU) employees. Specifically, this bill would provide that an action for damages may not be brought unless the UC has reached or failed to reach a decision within the time limits established by the Regents, provided that this section shall not prohibit the injured party from seeking a remedy if the university has not satisfactorily addressed the complaint within 18 months. FISCAL EFFECT : None COMMENTS : The author explains the need for the bill as follows: "There exists ambiguity in Government Code Section 8547 with regard to who is protected under the State's Whistleblower Protection Act. Unlike all other state employees, UC employees can only seek damages in court when the university fails to reach a decision regarding the complaint within the time limits established by the regents. In July 2008, the California Supreme Court ruled unanimously that University of California employees who are retaliated against because they reported wrongdoing cannot sue for damages under the state's Whistleblower Protection Act, so long as the University itself reviews the complaints and reaches a decision in a timely fashion. The ruling uncovered an oversight made by the Legislature when the Act was amended in 2001, which provided SB 650 Page 2 legal standing for all other state employees to seek damages. While the Court was unanimous in their ruling, three of the seven judges urged the Legislature to consider changes to the law as the current statute undermines the purpose of the Act. SB 650 would fix this oversight and provide UC employees the same whistleblower protections and legal standing as CSU employees. The bill provides that UC employees can seek damages once the administrative process is complete. This bill corrects the oversight in statute, and thereby protects UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse." In Miklosy v. Regents of the University of California (2008) 44 Cal.4th 876 the court held that the statutory language in the WPA, particularly those provisions pertinent to the UC, "means what it says, precluding a damages action when, as here, the University of California has timely decided a retaliation complaint." The court noted, "A damages action in state court may afford complainants a more favorable forum because the fact finder in state court is not a University employee, and because other procedural protections apply, such as evidentiary rules, testimony under penalty of perjury, and cross-examination of witnesses. But the appropriateness of granting these procedural protections to University whistleblowers is a matter of policy that is not for this court to determine." In her concurring opinion, Justice Werdegar expressed her concern that the UC would essentially be policing itself to the detriment of whistleblower employees, and injured whistleblowers would not have access to independent judicial review. She wrote: The decision we reach today, giving section 8547.10 its literal meaning, will strongly undermine the purposes of the Act, whose central purpose is ? [state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution]. For whistleblowing employees to be confident they are protected against retaliation, they must have recourse to a fair and impartial decisionmaking process outside the line management of their employing agency or University. If the same government organization that has tried to silence the SB 650 Page 3 reporting employee also sits in final judgment of the employee's retaliation claim, the law's protection against retaliation is illusory. I do not believe the [same] ? Legislature that ? created a civil action for damages on behalf of a whistleblower subjected to retaliation by the University "could reasonably have intended the University to resolve whistleblower retaliation claims by way of its own internal procedures" (maj. opn., ante at p. 898) without any meaningful judicial review. (Miklosy, 44 Cal.4th at 904.) This bill would permit an action for the recovery of damages if the UC reached a decision on the plaintiff's complaint, thereby overturning Miklosy and addressing Justice Werdegar's concern. Under existing law, an injured state employee or applicant for employment may file an action for damages if the injured party has first filed a complaint with the State Personnel Board and the board has issued, or failed to issue, findings, as specified. Also under existing law, a CSU injured employee is not prohibited from seeking a remedy if the University has not satisfactorily addressed the complaint within 18 months. Because this bill would allow an injured UC employee to bring an action for damages if the University reached or failed to reach a decision regarding the retaliation complaint within the established time limits, injured UC employees would be treated comparably to injured state employees and injured CSU employees. Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334 FN: 0004859