WHISTLEBLOWERS/FREE SPEECH AND PRESS — The Assembly Judiciary Committee approved two bills on Tuesday authored by
Senator Leland Yee (D-San Francisco) to protect faculty and workers from
retaliation at the University of California and students from censorship at charter
schools.
On a 6-3 vote, the committee approved SB 650 a reintroduction of last
year´s SB 219 that would provide UC employees who report waste, fraud
and abuse with the same legal protections as other state employees,
including those at California State University.
Specifically, the bill will 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 complaint within the time limits
established by the Regents and Trustees respectively; 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.
The committee also unanimously approved SB 438 to ensure that charter
schools adhere to state law protecting free speech rights of students.
In 2006, Yee passed legislation that prohibits censorship of student
press by administrators and protects students from being disciplined for
engaging in speech or press activities. In 2008, he followed up with a
law to protect high school and college teachers and other employees
from retaliation by administrators as a result of student speech.
SB 438 explicitly states that California charter schools must adhere to
the state´s student speech and employee protection laws.
"Students in California have a fundamental right to free expression,"
said Yee. "It is quite disheartening to hear that taxpayer-funded
charter schools think their students do not deserve the same rights as
those afforded to students at public and private schools throughout our
state."
Last year, administrators at the Orange County High School of the Arts
interpreted state law to not include charter schools when they halted
printing of the student newspaper last September.
"The overwhelming passage of SB 438 by the Senate today affirms that
existing law protects charter school students´ speech activities and
censorship will not be tolerated on any school campus," said Ewert.
"Allowing censorship by a school district undermines the democratic
process and the ability of a student newspaper to serve as a watchdog
and bring sunshine to the actions of administrators," said Yee. "School
principals should be supporting student free expression and fostering
an open dialogue of ideas; not teaching values that are contrary to the
foundation of our republic."
