BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 650|
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UNFINISHED BUSINESS
Bill No: SB 650
Author: Yee (D), et al
Amended: 6/7/10
Vote: 21
SENATE JUDICIARY COMMITTEE : 3-2, 1/12/10
AYES: Corbett, Hancock, Leno
NOES: Harman, Walters
SENATE FLOOR : 23-15, 1/28/10
AYES: Calderon, Cedillo, Corbett, Correa, DeSaulnier,
Ducheny, Florez, Hancock, Kehoe, Leno, Lowenthal,
Maldonado, Negrete McLeod, Oropeza, Padilla, Pavley,
Price, Romero, Simitian, Steinberg, Wiggins, Wright, Yee
NOES: Aanestad, Ashburn, Cogdill, Cox, Denham, Dutton,
Harman, Hollingsworth, Huff, Liu, Runner, Strickland,
Walters, Wolk, Wyland
NO VOTE RECORDED: Alquist
ASSEMBLY FLOOR : 49-26, 6/24/10 - See last page for vote
SUBJECT : Disclosure of improper governmental activities:
California
Whistleblower Protection Act: Universities
SOURCE : American Federation of State, County and
Municipal
Employees, AFL-CIO
DIGEST : This bill overturns the California Supreme
CONTINUED
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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 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 available action for
damages or other legal remedies arising on or after January
1, 2011 for a UC employee of applicant for employment under
the same procedure.
Assembly Amendments recast the language so that UC
employees that blow the whistle on improper governmental
activities have the same rights and remedies as
whistleblowers at CSU.
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.
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( 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 provides that any action for damages shall not be
available to the injured party unless the injured party has
first filed a complaint with the university officer, and
the university has failed to reach a decision regarding
that complaint within the time limits established for the
purpose by the regents. 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
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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 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
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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
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/23/10)
American Federation of State, County and Municipal
Employees,
AFL-CIO (source)
American Federation of State, County and Municipal
Employees,
Local 3299
Californians Aware
California Labor Federation
California Newspaper Publishers Association
California Nurses Association
City and County of San Francisco
Council of University of California Faculty Associations
Law Office of Mary-Alice Coleman
Editorial - San Diego Union Tribune
Editorial - San Francisco Chronicle
Editorial - UCLA Daily Bruin
The Greenlining Institute
San Francisco Labor Council
SEIU California
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California Employment Lawyers Association
OPPOSITION : (Verified 6/23/10)
University of California
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.
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ARGUMENTS IN OPPOSITION : (no letter on file)
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Bradford, Brownley, Buchanan, Caballero, Charles
Calderon, Carter, Chesbro, Coto, Davis, De La Torre, De
Leon, Eng, Evans, Feuer, Fong, Fuentes, Furutani,
Galgiani, Gatto, Hall, Hayashi, Hernandez, Hill, Huber,
Huffman, Jones, Lieu, Bonnie Lowenthal, Ma, Mendoza,
Monning, Nava, V. Manuel Perez, Portantino, Ruskin,
Salas, Saldana, Skinner, Solorio, Swanson, Torlakson,
Torres, Yamada, John A. Perez
NOES: Adams, Anderson, Bill Berryhill, Blakeslee, Cook,
DeVore, Fletcher, Gaines, Garrick, Gilmore, Hagman,
Harkey, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Norby, Silva, Smyth, Audra Strickland,
Torrico, Tran, Villines
NO VOTE RECORDED: Bass, Tom Berryhill, Conway, Fuller
RJG:nl 6/25/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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