Logic Loses to Bad Whistleblower Law

In a setback to whistleblowers, the Supreme Court of California issued an opinion yesterday stating that the University of California (UC) can avoid liability in whistleblower cases simply by deciding whistleblower allegations.  Under the Court's ruling, if UC renders a decision on a case in a timely fashion, UC employees (who are spread out at ten campuses and three DOE labs in California and New Mexico) do not have standing to file for damages under the California Whistleblower Protection Act (WPA).

In December 2006, POGO filed an amicus brief arguing that the WPA's administrative claim provision (Gov. Code. § 854.10(c)) should be interpreted as an exhaustion requirement.  In other words, once UC has rejected its employee's claim, the employee should be entitled to bring a damages claim in court.  Any other interpretation would jeopardize the important rights and constitutional principles protected by the whistleblower statute.

The case in question is Miklosy v. Regents of U.C..  Leo Miklosy and Luciana Messina, UC computer scientists at Lawrence Livermore National laboratory (LLNL), were working on a program to "determine the safety and reliability of the nation's nuclear weapons stockpile."  After identifying problems with their project and reporting them to management, Miklosy was fired, and Messina resigned.  The former employees filed complaints with UC and filed damages actions in state court.  The damages actions were dismissed when the Courts held that Miklosy and Messina had no claim under the WPA because UC resolved their complaints.  Yesterday's decision affirmed that result, concluding that the statutory language precludes any damages claims because UC "has timely decided a retaliation complaint."  The Court stated:

"In short, the University functions in some ways like an independent sovereign, retaining a degree of control over the terms and scope of its own liability.  Given the University's unique constitutional status, it is not surprising that the Legislature would take a deferential approach when authorizing damages actions against the University." [Emphasis added.]

Our arguments were not in vain, however.  The concurring opinion by Justice Werdegar, who agreed with the majority but also seemed to have struggled with the illogical result, stated that: "[t]he literal reading of section 8547.10 we adopt today borders on the absurd, bringing into possible play the principle that language of a statute should not be given a literal meaning if doing so would result in absurd consequences the Legislature did not intend."

Justice Werdegar urged the legislature to revisit the law because it "will act powerfully to defeat the purposes of the Whistleblower Protection Act...with respect to University employees."  She also found that:

"For whistle blowing employees to be confident they are protected against retaliation, they must have recourse to a fair and impartial decisionmaking process outside the line management of their employing agency or university.  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." [Emphasis in original.]

POGO hopes that the issue is taken up by the California legislature.  Whistleblower cases should require an independent evaluation of the retaliatory actions against employees.  Without independent evaluation, this is just another example of the fox guarding the hen house, with UC whistleblowers left out in the cold.

-- Scott Amey

Comments

[anonymous]

I was put in a position to choose between loyalty and integity in an NIH funded research project. I chosed integrity knowing that there is a law out there to protect me against unlawful termination, retaliation and discrimination. The result is that I am out of job for over 10 months and I don't even have the right to a hearing!

In the light of the new whistleblower protection law, employees, staff, and faculty will lose their rights of protection from retaliation therefore, no one will ever think of reporting anything.

The consequences are then unimaginable and unpredictible...

[Scott Amey]

California state Senator Yee proposes language to provide UC employees the same whistleblower protections as other state employees.

August 12, 2008

Senator Leland Y. Yee, Ph.D.
California State Senate
State Capitol, Room 4048
Sacramento, CA 95814

Via Facsimile (916) 327-2186

Dear Senator Yee:

The Project On Government Oversight (POGO) commends your legislative efforts through SB 1199 to provide University of California (UC) employees the same whistleblower protections as other state employees.

As an independent nonprofit organization committed to achieving a more accountable federal government, POGO has urged the federal government to better protect government insiders who report waste, fraud, and abuse in government activities and spending. In a setback to whistleblowers, the Supreme Court of California, following a California statute, issued a recent opinion stating that the UC can avoid liability in whistleblower cases simply by deciding whistleblower allegations. Under the Court’s ruling, if UC merely renders a decision on a case in a timely fashion, UC employees (who are spread out at ten campuses and three Department of Energy labs in California and New Mexico) do not have standing to file for damages under the California Whistleblower Protection Act (WPA).

Thank you for your leadership in remedying the current law and thereby protecting UC whistleblowers. Without an independent legal remedy, UC would be its own judge and jury in cases alleging that it had retaliated against its employees. POGO strongly supports the UC whistleblower protections included in SB 1199 as amended.

Sincerely,

Scott H. Amey
General Counsel

[Axel]

Dear POGO, August 1, 2008

I have no knowledge of the case other than this posting, although is a viable avenue available for a Federal Filing as to my view the resolve did not take place nor was it heard in reference to Miklosy and Messina (et all?) ?

Also as a California Legislative process, would a Judicial member inquiry review and accrediation be available (Impeachment Inquiry or exercise and implementation process).

Thank you POGO for your tremendous highly commendable superb and excellent endeavor and support and expense's !! and especially within your limited resources and budget on behalf of proper and forthright accountability and on behalf of all.

Thank you POGO for allowing me to respond as my efforts are to allow for as much hope and/or optomistic view as possible to be achieved on behalf of your endeavors.

(Hopefully my reply is not just sad painstaking rehtoric in the face of a lack of Political, Judicial, Legislative will and the lack of reasonable viable support and funds for brave and courages, proper and forthright Pro Bono and/or Amicus attempts to be properly and forthrightly acknowledged and heard as would be expected within our Federal and State respective Constitutions and Democracy).

POGO, please advise and/or make the necessary corrections and/or deletions within my reply to this Article. I am not a lawyer and also I do not want to unduly interfere with this and hopefully ongoing matter and especially POGO's superb and excellent, patient and tolerant, time and consideration and painstaking efforts within this hopefully ongoing matter(s).

Thank you POGO for your time and consideration.

Sincerely,
Axel