BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 650
Senator Yee
As Amended December 15, 2009
Hearing Date: January 12, 2010
Government Code
GMO/KB:jd
SUBJECT
Disclosure of Improper Governmental Activities:
California Whistleblower Protection Act:
University of California: Action for Damages
DESCRIPTION
Under the California Whistleblower Protection Act (CWPA), an
action by an employee of or applicant for employment to the
University of California (UC) to recover damages caused by
intentional acts of reprisal, retaliation, threats, or coercion
is not available unless the injured party had first filed a
complaint and the university failed to reach a decision within
the time limits provided by law.
This bill would overturn the California Supreme Court's decision
in Miklosy v. The Regents of the University of California (2008)
44 Cal.4th 876, which held that an employee of the UC who is a
whistleblower cannot sue for damages for retaliation where the
University timely decided a retaliation complaint.
Thus the bill would authorize an action for recovery of damages
only if the injured party first filed a complaint and the
University either reached a decision or failed to reach a
decision within the time limit specified by the University,
which time limit cannot exceed 18 months.
The bill would apply the same test for recovery of damages to an
employee or applicant for employment of the California State
University.
BACKGROUND
(more)
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Plaintiffs Miklosy and Messina are computer scientists who were
employed by the University of California at the Lawrence
Livermore National Laboratory (Laboratory). In the course of
their work, the scientists identified problems with the project,
which they expressed to management orally and in writing. On
February 28, 2003, three supervisors fired Miklosy, who then
overheard the same three supervisors declare that Messina would
be next. Messina then submitted a letter of resignation and was
asked to reconsider over the weekend. However, when she
returned to her office after the meeting, she found that her
computer had been disconnected. After another meeting, and
overhearing another conversation where the supervisor indicated
an intent to fire Messina, Messina resigned.
Plaintiffs then filed complaints with the University under the
CWPA. The Laboratory followed the procedure outlined in the
statute, and reached a decision adverse to the plaintiffs within
the time limits specified in its internal policies. This
decision became final. Plaintiffs then filed a damages action
in superior court against the University and three supervisory
employees alleging several causes of action, among them unlawful
retaliation in violation of the CWPA. The trial court sustained
a demurrer, and the Court of Appeal affirmed, holding that
plaintiffs had no viable claim under the CWPA because the
University timely resolved their complaints and further that the
other common law claims were statutorily barred.
The California Supreme Court affirmed, holding that the
statutory language in the CWPA, 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."
This bill would overturn the Miklosy decision by providing that
an injured UC whistleblower employee may bring an action for
damages if the University reached or failed to reach a decision
regarding a retaliation complaint filed by the injured employee
within established time limits for reaching that decision. The
bill also would place a time limit of 18 months from the filing
of the complaint for the university to reach a decision.
CHANGES TO EXISTING LAW
Existing law , the CWPA, was enacted so that "state employees
should be free to report waste, fraud, abuse of authority,
violation of law, or threat to public health without fear of
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retribution." (Gov. Code Sec. 8547 et seq.)
Existing law protects state employees against whistleblower
retaliation by providing for the filing of a complaint with the
State Personnel Board (SPB) and, after the SPB has issued or
failed to issue a decision or findings on the complaint, by
providing for the filing of an action for damages in superior
court. (Gov. Code Sec. 8547.8.) The SPB is required to
initiate a hearing or investigation within 10 working days of
receipt of the complaint and complete the findings of the
hearing or investigation within 60 working days thereafter.
(Gov. Code Sec. 19683.)
Existing law , under the CWPA, provides the same protection and
procedure to employees of the UC as that given to state
employees, requiring however that a whistleblower retaliation
complaint be filed first with the University, and providing that
an action for damages may not be brought unless the University
failed to reach a decision within the time limits established by
the regents for this purpose. (Gov. Code Sec. 8547.10.) This
statute was construed by the California Supreme Court to mean
that where the University reached a decision within the time
limits set by the UC Regents pursuant to Section 8547.10, a
plaintiff cannot file an action for damages in superior court.
(Miklosy v. The Regents of the University of California (2008)
44 Cal.4th 876.)
Existing law , under the CWPA, provides the same protection and
procedure to employees of the California State University (CSU)
as that given to state employees, requiring however that a
whistleblower retaliation complaint be filed first with the CSU,
and providing that an action for damages may not be brought
unless the CSU failed to reach a decision within the time limits
established by the trustees for this purpose. Under these
provisions, however, an injured party (plaintiff in a
whistleblower retaliation complaint) is not precluded from
seeking a remedy if the CSU has not satisfactorily addressed the
complaint within 18 months. (Gov. Code Sec. 8547.12.)
This bill would provide that an action for damages may be
brought only if the injured party has filed a complaint and the
university has reached or failed to reach a decision within the
time limits established by the regents for this purpose. This
bill would overturn Miklosy v. The Regents of the University of
California (2008) 44 Cal.4th 876. (See Comment 2.)
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This bill would not preclude an employee or applicant of the UC
from filing an action to recover damages if the university has
not satisfactorily addressed the complaint filed by the employee
or applicant within 18 months.
COMMENT
1. Stated need for the bill
The author writes:
There exists ambiguity in Government Code Section 8547 with
regard to who is protected under the State's Whistleblower
Protection Act, how they are protected and what their rights
are.
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 decisions in a timely fashion. The ruling uncovered
an oversight made by the Legislature when the Act was amended
in 2001, which provided legal standing for all other state
employees, including employees of the California State
University, to seek damages.
While the Court was unanimous in their ruling, three of the
seven justices (Chief Justice George and Justices Werdegar and
Moreno) urged the Legislature to consider changes to the law
as the current statute undermines the Act.
Thus, unlike all other state employees, UC and CSU employees
can only seek damages in court if the university fails to
reach a decision regarding the complaint. It is necessary to
give all CSU and UC employees, who exercise the good practice
of reporting waste, fraud, and abuse, the same protections
against retaliation from the administration. Otherwise, the
university is both judge and jury of its own defense. Giving
whistleblowers the right to go to court will also provide a
strong incentive to the universities to adequately address the
whistleblower complaints administratively.
2. Governor's veto of SB 219
SB 650 is an improved version of SB 219 (Yee, 2009), which this
Committee passed but was vetoed by the Governor. The Governor's
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veto message states:
I strongly support correcting the current problem with
existing law concerning the availability of judicial
review for employees of the University of California that
file claims of retaliation against the University of
California for violations of the Whistleblower Protection
Act. Unfortunately, rather than extending the same
protections as provided for California University
employees and other state employees to employees of the
University of California, this measure, as drafted, could
discourage employees of the University of California from
exhausting their administrative remedies before filing
claims in superior court.
Heeding the Governor's veto message, this bill would redraft the
pertinent language in the CWPA applicable to the UC to clarify
that an action for damages would be available to UC employees as
it is to CSU employees, so long as a complaint was timely filed
as required by the CWPA. It would also apply the 18-month time
limit, applicable to the CSU to process a whistleblower
employee's complaint of retaliation, to UC employees or
employment applicants' complaint of retaliation. It is not
clear whether this language in SB 650 is sufficient to address
the Governor's concerns with the language in SB 219.
3. Bill would overturn the Miklosy v. The Regents of the
University of California decision; and would address Justice
Werdegar's concerns raised in her concurring opinion
This bill would permit an action for the recovery of damages if
the University reached a decision on the plaintiff's complaint,
thereby overturning Miklosy.
In Miklosy, the Court concluded that Government Code Section
8547.10(c), by its plain language, precluded plaintiffs' damages
action against the University because the University had timely
decided plaintiffs' retaliation complaint. The Court found that
a civil action under Section 8547.10(c) is only available when
an employee has first filed a complaint with the University and
the University has failed to reach a timely decision on the
complaint.
In her concurring opinion, Justice Werdegar expressed her
concern that the University would essentially be policing itself
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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
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 address Justice Werdegar's concerns by providing
that a UC injured whistleblower employee may bring an action for
damages if the University reached or failed to reach a decision
regarding the retaliation complaint within the established time
limits. The bill would set the "established time limit" at a
maximum of 18 months (see Comment 3 below).
4. This bill would bring the allowed damages action for UC
injured employees in line with those afforded injured state
employees and injured CSU employees
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. (Gov. Code Sec. 8547.8.) Also under existing law, a
CSU injured employee is not prohibited from seeking a remedy if
the CSU has not satisfactorily addressed the complaint within 18
months.
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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.
And, following the CWPA provision applicable to CSU, the bill
would not prevent an employee or applicant of the UC from filing
an action to recover damages if the University has failed to
reach a decision within 18 months.
5. Opposition
In opposition the California State University writes:
Having an administrative review in place that is clearly
defined for all parties is in the best interest of all and
only if a claim has not been resolved should it be appropriate
to use the court system. This proposed change in law,
allowing an employee to file for a civil action at anytime,
makes the internal investigation process useless and will no
doubt lead to increased costs for the system. Additionally,
internal reviews allow the CSU to develop systemwide policies
and procedures to ensure whistle blower protections. While we
do note that the measure has been keyed as being non-fiscal,
we believe that by not using the administrative process first,
that the CSU will incur unnecessary costs.
Support : California Nurses Association; California Labor
Federation
Opposition : California State University
HISTORY
Source : American Federation of State, County, and Municipal
Employees (AFSCME)
Related Pending Legislation : None Known
Prior Legislation :
AB 2988 (Feuer, 2008) would have overturned the Miklosy
decision; and would have declared the intent of the Legislature
to enact legislation to ensure that employees of the UC are
given the same protection under the CWPA as the protection
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provided to employees of the CSU system. The bill would have
been an urgency measure so that the protections for employees of
the UC may be preserved immediately. This bill was later gutted
and amended.
SB 219 (Yee, 2009). Vetoed by the Governor. (See Background.)
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