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
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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