UC Whistleblower Protection Bill Sent to Governor
California Political Desk
August 26, 2009
SACRAMENTO – On a 22-14 vote, the California State Senate today approved legislation to provide University of California employees who report waste, fraud and abuse with the same legal protections as other state employees. Despite overwhelming support from open government advocates and UC students, faculty, and workers, the University administration continues to oppose the measure authored by Senator Leland Yee (D-San Francisco/San Mateo).
"This is the classic case of the fox guarding the hen house, and yet another example of UC administrators opposing a commonsense reform," said Yee. "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 July 2008, the California Supreme Court ruled (Miklosy v. the Regents of the University of California (S139133, July 31, 2008) that 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 to seek damages.
"In light of the Court´s ruling, it is imperative that the Governor sign SB 219 to immediately correct this statute and protect UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse," said Yee.
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," 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 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 is one of several good governance proposals opposed by the UC Board of Regents.
"This is the classic case of the fox guarding the hen house, and yet another example of UC administrators opposing a commonsense reform," said Yee. "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 July 2008, the California Supreme Court ruled (Miklosy v. the Regents of the University of California (S139133, July 31, 2008) that 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 to seek damages.
"In light of the Court´s ruling, it is imperative that the Governor sign SB 219 to immediately correct this statute and protect UC workers from unfair retaliation for rightfully reporting waste, fraud, or abuse," said Yee.
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," 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 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 is one of several good governance proposals opposed by the UC Board of Regents.
Print
Email
