BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 650|
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THIRD READING
Bill No: SB 650
Author: Yee (D), et al
Amended: 1/20/10
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 1/12/10
AYES: Corbett, Hancock, Leno
NOES: Harman, Walters
SUBJECT : Disclosure of improper governmental activities:
California
Whistleblower Protection Act: University of
California
SOURCE : American Federation of State, County and
Municipal
Employees, AFL-CIO
DIGEST : This bill overturns the California Supreme
Courts decision in Miklosy v. The Regents of the University
of California (2008) 44 Cal.4th 876, which held that an
employee of the University of California (UC) who is a
whistleblower cannot sue for damages for retaliation where
the University timely decided a retaliation complaint.
This bill authorizes 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 applies
the same test for recovery of damages to an employee or
CONTINUED
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applicant for employment of the California State
University. This bill provides that this act shall only
affect an action for damages or other legal remedies
arising on or after January 1, 2011.
ANALYSIS : Existing law, the California Whistleblower
Protection Act (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 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
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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 provides 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 overturns Miklosy v. The Regents of the
University of California (2008) 44 Cal.4th 876.
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.
This bill provides that it shall only affect an action for
damages or other legal remedies arising on or after January
1, 2011.
Background
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
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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 overturns 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.
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 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) was vetoed. The Governor's 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
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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 redrafts 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 also applies
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 1/20/10)
American Federation of State, County and Municipal
Employees,
AFL-CIO (source)
American Federation of State, County and Municipal
Employees,
Local 3299
Californians Aware
California Employment Lawyers Association
California Faculty Association
California Labor Federation, AFL-CIO
California Newspaper Publishers Association
California Nurses Association
Council of UC Faculty Associations
San Francisco Labor Council
Law Office of Mary-Alice Coleman
The Greenlining Institute
OPPOSITION : (Verified 1/20/10)
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California State University
ARGUMENTS IN SUPPORT : According to the author's office:
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.
ARGUMENTS IN OPPOSITION : California State University
writes:
Having an administrative review in place that is
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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.
RJG:nl 1/19/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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