On a 21-14 vote, the State Senate today sent that bill to Governor Schwarzenegger. Authored by Senator Leland Yee (D-San Francisco), it would ensure that UC employees can exercise their right to seek damages in court if the university has either reached or failed to reach a decision regarding a retaliation complaint within the time limit established by the Regents— or if the university has not satisfactorily addressed the complaint within 18 months.
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.
“This is the classic case of the fox guarding the hen house,” 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 the Miklosy decision, 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.
“SB 650 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,” said Terry Francke, General Counsel for Californians Aware. “Fraud, waste and corruption in government cannot succeed if public employees are well-protected against punishment for blowing the whistle on wrongdoing.”
“SB 650 would protect UC employees who continue to face reprisal for reporting bad behavior and, without protection, will likely no longer be willing to provide journalists, the Legislature and the public with essential information about the operations of these high profile institutions in an era where available financial resources are increasingly scarce,” said Jim Ewert, Legal Counsel for the California Newspaper Publishers Association.
Once received, the Governor will have twelve days to sign or veto SB 650