Committee Approves Bill to Protect UC Whistleblowers
California Political Desk
June 25, 2009
SACRAMENTO – In July 2008, the California Supreme Court ruled that University of California (UC) employees who are retaliated against because they report wrongdoing cannot sue for damages under the state´s Whistleblower Protection Act, so long as the University itself reviews the complaints 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.
In response to the Court´s decision in Miklosy v. the Regents of the University of California (S139133, July 31, 2008), the Assembly Judiciary Committee today approved (8-2) legislation to provide UC employees with the same whistleblower protections and legal standing as all other state employees.
"This is the classic case of the fox guarding the hen house, and yet another example of UC administrators opposing a commonsense reform," said Senator Leland Yee (D-San Francisco/San Mateo), the bill´s author. "UC executives should not be judge and jury on whether or not they are liable for monetary claims. This was not the intent of California´s whistleblower law. In light of the Court´s ruling, it is imperative that we pass SB 219 and immediately correct this statute to protect UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse."
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.
"The court´s reading of the Act, making the University the judge of its own civil liability and leaving its employees vulnerable to retaliation for reporting abuses, thwarts the demonstrated legislative intent to protect those employees and thereby encourage candid reporting," wrote Justice Kathryn Mickle Werdegar, joined by Chief Justice Ronald George and Justice Carlos Moreno. "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."
The Miklosy decision deals with the plight of two former scientists at UC´s Lawrence Livermore National Laboratory, who repeatedly told their supervisors about equipment problems and poorly trained operators of a project designed to determine the safety and reliability of the nation´s nuclear weapons stockpile. One of the scientists, Leo Miklosy, was fired in February 2003 and the other, Luciana Messina, resigned a few days later after overhearing a supervisor say she would also be fired.
"This issue is tailor-made for Senator Yee, whose legislative work includes SB 220 to improve employee remedies under the Whistleblower Protection Act," said Terry Francke, General Counsel for Californians Aware. "SB 219 will resolve the ambiguity in statute referenced by the Supreme Court and will ensure that all UC employees are given the same real – and not illusory – whistleblower protections as other state employees."
"We are especially pleased to see Senator Yee so immediately address this issue," said Scott Amey, General Counsel for The Project on Government Oversight. "Whistleblower cases should require an independent evaluation of the retaliatory actions against employees. Without independent evaluation, UC whistleblowers are left out in the cold."
In addition to Californians Aware, SB 219 is supported by the American Federation of State, County, and Municipal Employees (AFSCME), California Psychiatric Association, California Newspaper Publishers Association, California Nurses Association, Council of University of California Faculty Associations, First Amendment Coalition, The Greenlining Institute, State Employees´ Trades Council, and the University of California Student Association.
SB 219 will next be considered by the full Assembly.
On a 7-2 vote, the Assembly Judiciary Committee also approved Yee´s SB 220 to expand the protections for state employees who report waste, fraud, and abuse.
In response to the Court´s decision in Miklosy v. the Regents of the University of California (S139133, July 31, 2008), the Assembly Judiciary Committee today approved (8-2) legislation to provide UC employees with the same whistleblower protections and legal standing as all other state employees.
"This is the classic case of the fox guarding the hen house, and yet another example of UC administrators opposing a commonsense reform," said Senator Leland Yee (D-San Francisco/San Mateo), the bill´s author. "UC executives should not be judge and jury on whether or not they are liable for monetary claims. This was not the intent of California´s whistleblower law. In light of the Court´s ruling, it is imperative that we pass SB 219 and immediately correct this statute to protect UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse."
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.
"The court´s reading of the Act, making the University the judge of its own civil liability and leaving its employees vulnerable to retaliation for reporting abuses, thwarts the demonstrated legislative intent to protect those employees and thereby encourage candid reporting," wrote Justice Kathryn Mickle Werdegar, joined by Chief Justice Ronald George and Justice Carlos Moreno. "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."
The Miklosy decision deals with the plight of two former scientists at UC´s Lawrence Livermore National Laboratory, who repeatedly told their supervisors about equipment problems and poorly trained operators of a project designed to determine the safety and reliability of the nation´s nuclear weapons stockpile. One of the scientists, Leo Miklosy, was fired in February 2003 and the other, Luciana Messina, resigned a few days later after overhearing a supervisor say she would also be fired.
"This issue is tailor-made for Senator Yee, whose legislative work includes SB 220 to improve employee remedies under the Whistleblower Protection Act," said Terry Francke, General Counsel for Californians Aware. "SB 219 will resolve the ambiguity in statute referenced by the Supreme Court and will ensure that all UC employees are given the same real – and not illusory – whistleblower protections as other state employees."
"We are especially pleased to see Senator Yee so immediately address this issue," said Scott Amey, General Counsel for The Project on Government Oversight. "Whistleblower cases should require an independent evaluation of the retaliatory actions against employees. Without independent evaluation, UC whistleblowers are left out in the cold."
In addition to Californians Aware, SB 219 is supported by the American Federation of State, County, and Municipal Employees (AFSCME), California Psychiatric Association, California Newspaper Publishers Association, California Nurses Association, Council of University of California Faculty Associations, First Amendment Coalition, The Greenlining Institute, State Employees´ Trades Council, and the University of California Student Association.
SB 219 will next be considered by the full Assembly.
On a 7-2 vote, the Assembly Judiciary Committee also approved Yee´s SB 220 to expand the protections for state employees who report waste, fraud, and abuse.
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