2015 ANNUAL REPORT TO THE LEGISLATURE	

WHISTLEBLOWER RETALIATION COMPLAINTS

Prepared by
State Personnel Board
801 Capitol Mall
Sacramento, CA 95814
Kimiko Burton, President
Lauri Shanahan, Vice President
Richard Costigan, CalPERS Representative
Maeley Tom, Member
Patricia Clarey, Member

Suzanne M. Ambrose, Executive Officer
June 2016

1

ANNUAL REPORT TO THE GOVERNOR AND THE LEGISLATURE COMPLAINTS OF RETALIATION FOR THE DISCLOSURE OF INFORMATION BY PUBLIC EMPLOYEES (WHISTLEBLOWER RETALIATION)

June 2016

Introduction

Government Code section 19683, subdivision (f) provides, “In order for the Governor and the Legislature to determine the need to continue or modify state personnel procedures as they relate to the investigations of reprisals or retaliation for the  disclosure of information by public employees, the State Personnel Board, by June 30  of  each  year1,  shall submit a  report  to  the Governor  and  the Legislature   regarding
complaints filed, hearings held, and legal actions taken pursuant to this section.” This report is prepared by the State Personnel Board (SPB) for the calendar year of January 1, 2015 through December 31, 2015.

Background

Protection for state employees from retaliation for having reported improper governmental activities was first provided in 1985. At that time, the SPB was assigned responsibility for investigation of complaints of whistleblower retaliation.

Amendments to the whistleblower retaliation protections were made in 1987, 2000, 2001, 2004, 2010, 2011, 2012, and 2013. In 2002, SPB adopted regulations to implement the whistleblower retaliation laws.

Effective March 8, 2006, the SPB’s regulations were revised to include the requirement that the Executive Officer refer cases for investigation or schedule an informal hearing before an administrative law judge. Effective August 18, 2010, the SPB’s regulations concerning the whistleblower statutes were revised as part of a broader revision to SPB’s regulations.

Information

Whistleblowing is defined as either disclosing information that an employee or applicant of a state agency, a community college, the California Supreme Court, a  court of appeal, a superior court, or the Administrative Office of the Courts, reasonably believes is evidence of an improper governmental activity, or refusing to obey an illegal order or directive.

1 Six reports were produced between 1987 and 1992.  In 1992, Chapter 710 legislation (Government Code section 7550.5) instituted a moratorium on most reports to the Legislature. The moratorium was renewed in 1994 and 1996, and became inoperative on October 1, 1999. After the moratorium was finally repealed as of January 1, 2000, Whistleblower Retaliation Reports have been produced on an annual basis beginning with the calendar year 2000.

Three agencies play major roles in investigating whistleblower retaliation, the California State Auditor (CSA), the Office of the Inspector General (OIG), and the SPB.

CSA accepts complaints in reference to improper governmental activities. CSA is the investigative agency that has jurisdiction to investigate the underlying improper governmental activity.

OIG’s specific responsibility in whistleblower retaliation complaints is to investigate complaints of retaliation against those who report misconduct on the part of state correctional agencies and employees. OIG may, with the approval of the complaining employee, forward its investigative findings to the SPB for the purpose of bringing disciplinary action against an employee who is found to have violated the retaliation provisions when the department fails to do so. As an independent agency, OIG reports to the Governor. OIG also provides impartial analysis and policy recommendations to the Governor, the Legislature, and correctional administrators.

SPB is the adjudicatory body that hears and decides whistleblower retaliation  complaints filed by state civil service or community college employees; employees of  the Supreme Court, Courts of Appeal, Superior Courts, or the Administrative Office of the Courts; or applicants, who have alleged being subjected to an improper personnel action for disclosing improper governmental activity or refusing to obey an illegal order or directive.

The SPB has jurisdiction in whistleblower retaliation cases when all of the requirements listed below are met:

A state or community college applicant or employee or employee of the Supreme Court, Courts of Appeal, Superior Courts, or the Administrative Office of the Courts files the complaint. “Employee” includes any former employee who met the above criteria during his or her employment.
The complaint states a prima facie case of retaliation.
The complaint is filed within one year of the most recent act of reprisal.
The names and business addresses of each individual and entity alleged to have committed reprisal or retaliatory acts are provided.
The complainant provides a sworn statement, under penalty of perjury, that the contents of the complaint are true.

SPB does not accept filed complaints when any of the above requirements are not met or the SPB does not have jurisdiction over the employing entity (e.g. University of California, California State University).

Complaint Activity

In calendar year 2015, 53 whistleblower retaliation complaints were filed with the SPB. This  is  a  14%  decrease  from  2014,  when  the  SPB  received  64        whistleblower

complaints.  Of the 53 complaints filed in 2015, 21 of those complaints were accepted. Of the 21 cases accepted, 15 cases were assigned to the Informal Hearing Process. Six matters were assigned for a full Evidentiary Hearing. For those cases assigned to the Informal Hearing Process, one closed case was “granted”, seven were “dismissed” following  an  informal  hearing  and  the  issuance  of  a  Notice   of  Findings.	Of  the remaining seven complaints in the Informal Hearing Process, two were withdrawn by  the complainant, one settled prior to the issuance of a Notice of Findings, and four remain open.	For the six matters assigned for a full evidentiary hearing, two settled before the evidentiary hearing, and four complaints remain open. Detailed information regarding complaint activity is provided below.

SPB Whistleblower Retaliation Complaints Activity Report 20152

Total Complaints Filed	
Complaints Accepted	Complaints Not Accepted3	

53	
21	
32	

Disposition of Whistleblower Complaints Administered Entirely in the Informal Hearing Process

Granted after Notice of
Findings	
Dismissed after Notice of Findings	

Withdrawn	
Stipulated Settlement Before Notice of Findings	
Open Complaints	

1	
7	
2	
1	
4	

Status as of April 11, 2016.
SPB does not accept filed appeals when: (a) The complaint fails to state a prima facie case of retaliation; (b) the
complaint is not filed within one year of the most recent act of reprisal; (c) the complaint is not signed under penalty of perjury; or (d) the SPB does not have jurisdiction over the employing entity (e.g. University of California, California State University).

Disposition of Whistleblower Complaints Removed to the Evidentiary Hearing Process

Granted after Evidentiary Hearing	
Dismissed after Evidentiary Hearing	

Withdrawn	
Stipulated Settlement Before Evidentiary Hearing	
Open Complaints	

0	
0	
0	
2	
4	

Comparison of Whistleblower Appeals filed each Year

	
Number	Appeal Date	
Case Status	
Department	Consolidated4	RDAT5	Informal/Evidentiary Hearing	

1	
15-0013W	
1/7/15	Closed – No Prima Facie Case	
Forestry and Fire Protection	
N/A	
Yes	
N/A	

2	
15-0049W	
1/7/15	Closed – No Prima Facie Case	
Corrections and Rehabilitation	
N/A	
Yes	
N/A	

3	
15-0055W	
1/13/15	Closed – Complaint Withdrawn by Complainant	General Services-Human Resources	
N/A	
Yes	
N/A	

4	
15-0056W	
1/14/15	Closed – Notice of Findings (Dismissed)	
Transportation	
N/A	
Yes	
Informal	

5	
15-0077WEK	
1/16/15	Closed - Stipulated Settlement Prior to Evidentiary Hearing	
State Controller's Office	
15-0074K (AA)	
Yes	
N/A	

6	
15-0109W	
1/21/15	Closed – No Prima Facie Case	
Forestry and Fire Protection	
N/A	
No	
N/A	

7	
15-0097W	
1/22/15	Closed – Notice of Findings (Dismissed)	
Transportation	
N/A	
Yes	
Informal	

8	
15-0162W	
2/3/15	Closed – No Prima Facie Case	
Corrections and Rehabilitation	
N/A	
No	
N/A	

9	
15-0245W	
2/13/15	Closed – Notice of Findings (Dismissed)	
Corrections and Rehabilitation	
N/A	
No	
Informal	

AA: Whistleblower Retaliation Complaint consolidated with prior Adverse Action appeal. DC: Whistleblower Retaliation Complaint consolidated with prior Discrimination Complaint. E:  Converted to formal evidentiary hearing.
WB: Whistleblower Retaliation Complaint consolidated with other Whistleblower Retaliation Complaint.

5 RDAT: indicates whether complainant requested disciplinary action be taken.

	
Number	Appeal Date	
Case Status	
Department	Consolidated4	RDAT5	Informal/Evidentiary Hearing	

10	
15-0349W	
3/5/15	Closed – Notice of Findings (Granted)	
Child Support Services	
N/A	
Yes	
Informal	

11	
15-0365WE	
3/9/15	
Open	
Corrections and Rehabilitation	
15-0355N	
Yes	
Evidentiary (Pending)	

12	
15-0366WK	
3/9/15	Closed – Notice of Findings (Dismissed)	
State Hospitals - Legal	14-2167WK (AA)	
Yes	
Informal	

13	
15-0411W	
3/16/15	Closed – No Prima Facie Case	
Transportation	
N/A	
Yes	
N/A	

14	
15-0459W	
3/23/15	Closed – No Prima Facie Case	
Developmental Services	
N/A	
No	
N/A	

15	
15-0481W	
3/26/15	Closed – Notice of Findings (Dismissed)	
Technology	
N/A	
Yes	
Informal	

16	
15-0673W	
4/20/15	Closed – No Prima Facie Case	
FISCal	
N/A	
No	
N/A	

17	
15-0719W	
5/1/15	Closed – No Prima Facie Case	
Transportation	
N/A	
Yes	
N/A	

18	
15-0720W	
5/4/15	Closed – No Prima Facie Case	
Transportation	
N/A	
Yes	
N/A	

19	
15-0763W	
5/6/15	Closed – No Prima Facie Case	Corrections and Rehabilitation, CA Institution for Women	
N/A	
No	
N/A	

20	
15-0788W	
5/14/15	Closed – No Prima Facie Case	Unemployment Insurance Appeals Board	
N/A	
Yes	
N/A	

	
Number	Appeal Date	
Case Status	
Department	Consolidated4	RDAT5	Informal/Evidentiary Hearing	

21	
15-0848W	
5/20/15	Closed – No Prima Facie Case	
Social Services	
N/A	
No	
N/A	

22	
15-0954W	
6/10/15	Closed – No Prima Facie Case	
State Hospitals	
N/A	
Yes	
N/A	

23	
15-0958W	
6/11/15	Closed – No Prima Facie Case	
Energy Commission	
N/A	
No	
N/A	

24	
15-0968W	
6/15/15	Closed – No Prima Facie Case	State Compensation Insurance Fund	
N/A	
Yes	
N/A	

25	
15-1041W	
6/25/15	Closed – No Prima Facie Case	
Transportation	
N/A	
Yes	
N/A	

26	
15-1106W	
7/7/15	Closed – No Prima Facie Case	Corrections and Rehabilitation, CA Health Care Facility	
N/A	
Yes	
N/A	

27	
15-1121W	
7/7/15	Closed – No Prima Facie Case	CA Correctional Health Care Services	
N/A	
Yes	
N/A	

28	
15-0349WE	
7/8/15	Closed - Stipulated Settlement after Notice of Findings	
Child Support Services	
N/A	
Yes	
Informal	

29	
15-1135W	
7/9/15	Closed – Stipulated Settlement Prior to Notice of Findings	
Transportation	
N/A	
No	
N/A	

30	
15-1138W	
7/10/15	Closed – Lack of Prosecution	Corrections and Rehabilitation, CA Institution for Women	
N/A	
Yes	
N/A	

31	
15-1312W	
7/31/15	Closed – No Prima Facie Case	CA Correctional Health Care Services	
N/A	
Yes	
N/A	

	
Number	Appeal Date	
Case Status	
Department	Consolidated4	RDAT5	Informal/Evidentiary Hearing	

32	
14-1586WE	
8/4/15	Open - Notice of Findings (Granted)	CA Correctional Health Care Services	
N/A	
Yes	Informal/Evidentiary (Pending)	

33	
15-1353W	
8/7/15	Closed – No Prima Facie Case	
Motor Vehicles	
N/A	
No	
N/A	

34	
15-1330W	
8/10/15	Closed – Notice of Findings (Dismissed)	State Compensation Insurance Fund	
15-0968W (AA)	
Yes	
Informal	

35	
15-1385W	
8/18/15	Closed – No Prima Facie Case	Community College, San Bernardino District	
N/A	
Yes	
N/A	

36	
15-1410WEK	
8/21/15	
Open	
CalOES	
15-0876E (E)	
No	
Evidentiary	

37	
15-1428W	
8/21/15	Closed – No Prima Facie Case	Corrections and Rehabilitation, CSP-Sacramento	
N/A	
No	
N/A	

38	
15-1434W	
8/24/15	
Open	
Public Health	
N/A	
Yes	
N/A	

39	
15-1472W	
8/28/15	Closed – No Prima Facie Case	
Highway Patrol	
N/A	
No	
N/A	

40	
15-1513W	
9/4/15	Closed – No Prima Facie Case	
Parks and Recreation	
N/A	
No	
N/A	

41	
15-1516W	
9/4/15	Closed – Inadequate Affirmation	
Social Services	
N/A	
No	
N/A	

42	
15-1610W	
9/10/15	Closed – No Prima Facie Case	
Transportation	
N/A	
No	
N/A	

	
Number	Appeal Date	
Case Status	
Department	Consolidated4	RDAT5	Informal/Evidentiary Hearing	

43	
15-1556W	
9/11/15	Closed – Notice of Findings (Dismissed)	Agricultural Labor Relations Board - Legal	
N/A	
Yes	
N/A	

44	
15-1627W	
9/22/15	Closed – No Prima Facie Case	
Developmental Services	
N/A	
No	
N/A	

45	
15-1712WEK	
10/5/15	
Open	CA Correctional Health Care Services	
15-2142E (E)	
No	
N/A	

46	
15-1794W	
10/9/15	Closed – No Prima Facie Case	Housing and Community Development	
N/A	
Yes	
N/A	

47	
15-1887W	
10/21/15	Closed – No Prima Facie Case	Employment Development - Human Resources Services Division	
N/A	
No	
N/A	

48	
15-1939W	
10/29/15	Closed – No Prima Facie Case	
Corrections/EAPT	
N/A	
No	
N/A	

49	
15-2019W	
11/16/15	Closed – Failure to Comply with Regulations	CA Correctional Health Care Services	
N/A	
No	
N/A	

50	
15-2035W	
11/16/15	Closed – No Prima Facie Case	Community College, Napa Valley	
N/A	
Yes	
N/A	

51	
15-2087W	
11/27/15	Closed – Withdrawn by Appellant	Unemployment Insurance Appeals Board	
N/A	
No	
N/A	

52	
15-2181W	
12/15/15	
Open	Corrections and Rehabilitation, Pelican Bay State Prison	
15-1639E (E)	
Yes	
N/A	

53	
15-2206W	
12/18/15	Closed – No Prima Facie Case	
Transportation	
N/A	
Yes	
N/A	

2014 Whistleblower Retaliation Complaints Carried Over To Calendar Year 2015

	
Number	Appeal Date	
Case Status	
Department	Consolidated3	RDAT4	Informal/Evidentiary Hearing	

1	
14-1191WEK	
7/1/14	Closed – Notice of Findings (Dismissed)	
Corrections and Rehabilitation	14-1211 and 14-
1209 (AA)	
Yes	
Evidentiary	
2	
14-1277WEK	
7/11/14	Closed – Notice of Findings (Dismissed)	
Corrections and Rehabilitation	
14-0721 (AA)	
Yes	
Evidentiary	

3	
14-1284WEK	
7/18/14	Closed - Stipulated Settlement	
Transportation	
14-1537	
Yes	
Evidentiary	

4	
14-1586W	
9/10/14	Closed – Notice of Findings (Dismissed)	CA Correctional Health Care Services	
N/A	
Yes	
Informal	

5	
14-1693W	
9/25/14	Closed – Notice of Findings (Dismissed)	
Corrections and Rehabilitation	
N/A	
Yes	
Informal	

6	
14-1813W	
10/26/14	Closed – Withdrawn by Appellant	
Fair Employment and Housing	
N/A	
Yes	
Informal	

7	
14-1948W	
11/3/14	Closed – Withdrawn by Appellant	
Developmental Services	
N/A	
Yes	
Informal	

8	
14-2085W	
11/24/14	Closed – Withdrawn by Appellant	
Industrial Relations	
N/A	
No	
Informal	

9	
14-2294WK	
12/31/14	Closed – Notice of Findings (Dismissed)	
Developmental Services	
14-2295WK	
Yes	
Informal	

10	
14-2295WK	
12/31/14	Closed – Notice of Findings (Dismissed)	
Developmental Services	
14-2294WK	
Yes	
Informal	

2013 Whistleblower Retaliation Complaints Carried Over to Calendar Year 2015

	
Number	Appeal Date	
Case Status	
Department	Consolidated3	RDAT4	Informal/Evidentiary Hearing	

1	
13-0799WEK	
11/20/2013	Closed – Notice of Findings (Dismissed)	
State Hospitals	
13-0991WEK	
Yes	
Evidentiary	

2	
13-0991WEK	
11/20/2013	
Closed – Notice of Findings (Dismissed)	
State Hospitals	
13-0799WEK	
Yes	
Evidentiary