WHISTLEBLOWERS -- If you want University of California faculty and other employees to have the same protections from retaliation as their counterparts at the California State University in reporting waste, fraud, abuse, gross negligence or dangerous practices, contact the Governor by close of business Wednesday and urge him to sign SB 650.
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
states 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
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 Californias 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.
courts 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 employees retaliation claim, the laws protection against
retaliation is illusory.
The Miklosy decision deals with
the plight of two former scientists at UCs 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 nations 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.
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
Once received, the Governor will have twelve days to
sign or veto SB 650