SUBJECT:  New Whistleblower Provisions

Recent state legislation renames the "Reporting of Improper Governmental Activities Act" as the "California Whistleblower Protection Act" and expands the classification of people who are protected from retaliation. A University-wide task force is presently reviewing the University's "Whistleblower and Retaliation Policies," which implement the state law, and will propose revisions to address the recent amendments. When that process is completed, the campus policy "Reporting and Investigating Improper Governmental Activities, Misuse of University Resources, Fraud, and other Financial Irregularities" (PPM 460-5 Issued July 10, 1997) will be revised accordingly. In the meantime, this is to notify you of the significant changes in the law that is presently in effect.

The law protects employees from retaliation for filing whistleblower ("improper governmental activity") complaints, or refusing to carry out illegal orders. Under the new law, a protected whistleblower complaint (referred to as a "protected disclosure") is defined to include any good-faith communication intended to disclose improper governmental activity. Thus, any campus officer, director, manager, or supervisor may be the recipient of a "protected disclosure." Further, under the new legislation, such complaints need not be in writing; they may be verbal. Accordingly, all campus officers, directors, managers or supervisors should be sensitive to complaints of improper governmental activities and promptly refer them to the Director, Audit & Management Advisory Services (except where other established campus processes exist, i.e., sexual harassment, scientific misconduct, employee and student grievance procedures, etc.).

The definition of an improper governmental activity is quite broad and remains unchanged under the new legislation:

§ 8547.2. (b) "Improper governmental activity" means any activity by a state agency or by an employee that is undertaken in the performance of the employee's official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including, but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetence, or inefficiency.

The other significant legislative change regards the burden of proof that applies to claims of retaliation in civil or administrative proceedings. If the claimant demonstrates by a preponderance of the evidence that the filing of a protected disclosure was a contributing factor to the alleged retaliation, then the burden shifts to the accused to demonstrate by clear and convincing evidence that the action claimed to be retaliatory "would have occurred for legitimate, independent reasons, even if the employee had not engaged in the protected disclosures or refused an illegal order." This standard will apply in any administrative grievance proceeding, including challenges to adverse personnel actions.

             John Woods                  Steve Relyea
             Vice Chancellor              Vice Chancellor