Journalists know that confidential sources sometimes carry grudges against their employers and are also sometimes just mistaken about the facts they claim show wrongdoing. But that doesn’t mean they shouldn’t be protected as much as possible, so reporters and editors don’t expose them to retaliation—no matter how little they’re worth in news value. Now, in a case that should of great comfort to whistleblowers in general, the California Court of Appeal has reached a comparable conclusion, reports Rob Rogers for the Marin Independent Journal.
A College of Marin administrator has won an appeal against the college, which she believes demoted her for repeatedly questioning activities of her superiors that she believed to be illegal.
In ruling in her favor, the 1st District Court of Appeal in San Francisco also helped to clarify California’s statutes that protect “whistleblowers,” establishing that they are broader than similar federal laws and that they protect employees who report illegal activities — regardless of the employees’ motivation for reporting those activities.
“What the court has done was to walk through the California ‘whistleblower’ laws and explain what the meaning of their terms are,” said Martin Horowitz, an Oakland attorney who represented College of Marin employee Pamela Mize-Kurzman. He said that before Tuesday’s ruling “there were no standardized jury instructions in California for ‘whistleblower’ cases.”
The appellate court decision was a victory for Mize-Kurzman, who served as an administrator at the College of Marin in Kentfield from 1981 to 2007, and as a counselor there since 2007.
In 2006, Mize-Kurzman raised concerns about several of the college’s activities to her immediate supervisor, former Vice President of Student Learning Anita Martinez, as well as to former college President Frances White.
In particular, Mize-Kurzman expressed concerns about a college program she believed was using district funds to provide college scholarships exclusively to Latino students. She also alerted White to a policy decision by Martinez that allowed students to register for classes even if they had outstanding unpaid fees, and another decision by Martinez to remove questions about citizenship and residency information from college applications for admission. Mize-Kurzman sought legal opinions about these matters from both the college’s attorney and the California Community College Chancellor’s Office.
In response, Martinez ordered Mize-Kurzman to stop consulting legal counsel without her permission. In 2006, the college reorganized its administrative hierarchy, changing Mize-Kurzman’s title and removing her membership in the school’s Academic Standards committee. Mize-Kurzman considered these actions a demotion.
In 2007, the college Board of Trustees, acting on the recommendations of Martinez and White, placed Mize-Kurzman on administrative leave. Because Mize-Kurzman has tenure, she was able to claim a position at the school as a counselor.
Mize-Kurzman filed suit against the Marin Community College District in 2007, and lost her case in 2009. During that trial, Marin Superior Court Judge Verna Adams instructed her jury to make the distinction between “whistleblower” activities made “in good faith and for the public good” and those made “for personal reasons.”
“The evidence presented easily could have led the jury to find that plaintiff was motivated by personal reasons, such as a dislike of Martinez, dissatisfaction with the new direction of the college toward increasing enrollment, and a desire to ‘set up’ the employer by casting herself as a whistleblower,” the appeals court said.
The appeals court’s decision, by contrast, made it clear that an employee who alerts her supervisors to actions she believes may be illegal should be afforded the protections of the “whistleblower” statute, regardless of her motivations and regardless of whether the activities actually turn out to be illegal.
“It may often be the case that a personal agenda or animus towards a supervisor or other employees will be one of several considerations motivating the employee whistleblower to make a disclosure regarding conduct that the employee also reasonably believes violates a statute or rule or constitutes misconduct,” the appeals court said. “That motivation is irrelevant to the purposes of the disclosure statutes.”
An attorney representing the college district suggested the school may appeal the decision.
“The Court of Appeals decision protects employees who act in bad faith by treating them as legitimate ‘whistleblowers,'” said Calistoga attorney Larry Frierson. “We are pursuing our alternatives, including our possible appeal to the (state) Supreme Court.”
The College of Marin Board of Trustees is scheduled Tuesday to consider an addendum to board policy that clearly lays out the protections afforded to “whistleblowers.” In particular, the new policy would avoid requiring employees who suspect their immediate superior to be involved in illegal activity to have to report their concerns to that superior.
The policy is based on the recommendations of the Community College League and the College of Marin’s legal counsel.
