In a setback to whistleblowers, the Supreme Court of California issued an opinion last week 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. Last week'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.]
POGO’s 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.