BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 650
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          SENATE THIRD READING
          SB 650 (Yee)
          As Amended June 7, 2010
          Majority vote 

           SENATE VOTE  :23-15  
           
           JUDICIARY           7-3                                         
          
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          |Ayes:|Feuer, Brownley, Evans,   |     |                          |
          |     |Jones, Monning, Nava,     |     |                          |
          |     |Huffman                   |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Tran, Hagman, Knight      |     |                          |
          |     |                          |     |                          |
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           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  








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          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  








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               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