WHISTLEBLOWERS — San Diego State University strength coach David Ohtons almost six-year-old
whistleblower retaliation suit against the university has been
reinstated by the Court of Appeal a second time and appears to be finally headed for
trial, reports Brent Schrotenboer for the San Diego Union-Tribune.
In their unanimous decision Tuesday, three appellate justices also
suggested that the alleged retaliation Ohton suffered at the hands SDSU
colleagues and administrators in 2003 may constitute criminal conduct.
Ohton, an SDSU employee since 1986, claims that he was removed as
the football teams strength coach and had his hours restricted after
he cooperated with a California State
University audit that found mismanagement in the athletic department.
After investigating Ohtons whistleblower complaint, CSU said in a
letter of determination that Ohton was retaliated against but dismissed
it as minor retaliation. The university also said his removal as the
football teams strength coach was for other operational reasons.
The Legislature designated such retaliation as a criminal offense,
the justices decision said. Therefore, when CSU makes a finding of
retaliation, to satisfactorily address the whistleblower complaint, its
determination letter must state whether the matter was referred to
criminal prosecution, and if not why not. Anything short of this
defeats the protections created by the statute. Here, because of CSUs
silence on the issue of punishment and discipline, CSU did not
satisfactorily address Ohtons complaint.
The CSU could appeal Tuesdays decision to the California Supreme
Court. Christopher Cato, an attorney for the CSU, declined comment.
This marks the second time Ohtons case has been reinstated on his
appeal. The same three justices reinstated the case in 2007, only to
see it thrown out again by Superior Court Judge Charles Hayes in 2008
on procedural grounds. Ohton appealed again, leading to Tuesdays
The justices also awarded Ohtons costs on appeal.
One man with integrity and a determination to do what is right for
the student athletes at San Diego State University has endured criminal
retaliation, intimidation and fraudulent conduct committed at the
highest levels of the CSU and SDSU administrations, Ohtons attorney
Dennis Schoville said. This unanimous decision by three of our
brightest, most experienced justices will now allow coach David Ohton
to have his day in court. The illegal and fraudulent conduct by
university administrators at the highest level will finally be exposed.
Tuesdays decision also gives Ohton the upper hand in possible
Ohton filed suit in February 2004 under the
California Whistleblower Protection Act. He still works at SDSU as a
strength coach for baseball and other sports. The audits findings led to the ouster of three top administrators
and an equipment manager, including former Athletic Director Rick Bay. The CSU had determined Ohton didnt merit protection under the
whistleblower protection law because it said that allegations he passed
along about then-head football coach Tom Craft were not made in good
Ohtons attorneys alleged that SDSU Vice President Sally Roush
swept the allegations about Crafts excessive drinking under the rug to
avoid having to fire Craft. As a result, Ohtons attorneys said Ohton
was retaliated against despite a booster who confirmed the allegations
in an interview with Roush.
CSU attorneys have denied a cover-up. With respect to (CSUs) determination that Ohton did not act in
good faith in reporting Crafts alleged drunkenness while at an
out-of-state game and that his statement is therefore not a protected
disclosure, we conclude, based upon the administrative record before
the trial court, CSU applied an incorrect definition of good faith, and
therefore the result reached was contrary to law, the justices wrote
in Tuesdays decision.