STATE PERSONNEL BOARD

2018 ANNUAL REPORT TO THE LEGISLATURE	

WHISTLEBLOWER RETALIATION COMPLAINTS

Prepared by
State Personnel Board
801 Capitol Mall
Sacramento, CA 95814
Lauri  Shanahan, President
Shawnda Westly, Vice President
Mona Pasquil Rogers, CalPERS Representative
Kathy Baldree, Member
Kimiko  Burton, Member

Suzanne M. Ambrose, Executive Officer

June 2019

ANNUAL REPORT TO THE GOVERNOR AND THE LEGISLATURE COMPLAINTS  OF RETALIATION  FOR THE DISCLOSURE  OF INFORMATION  BY
PUBLIC EMPLOYEES (WHISTLEBLOWER RETALIATION) June 30, 2019
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, 2018 through December 31, 2018.

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.

Effective January 1, 2018, SPB's regulations were revised again. Several procedural changes were made with respect to Whistleblower Retaliation cases where retaliation is found after an informal hearing. When such a determination is made and the Respondent has requested an evidentiary hearing, a Trial Setting Conference is now scheduled. The parties are required to file and serve a Trial Setting Conference Statement setting forth estimated time for hearing, a witness list, and unavailable dates for hearing.

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 repealed as of January 1, 2000, Whistleblower Retaliation Reports have been produced on an annual basis beginning with the calendar year 2000.

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.

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, whom 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 or California State University).

Complaint Activity

In calendar year 2018, 39 whistleblower retaliation complaints were filed with the SPB, which is a 20 percent decrease from 2017 {49 complaints) and a 30 percent decrease from 2016 (55 complaints). In fact, 2018 saw the fewest complaints filed since 2001, when only 17 complaints were filed.

Of the 39 complaints filed in 2018, 10 complaints were accepted, representing an acceptance rate of 25 percent. This is an increase over the 2017 acceptance rate of 14 percent.

Of the 29 complaints that were not accepted, 38 percent of complainants chose not to amend their complaint following the SPB's dismissal with leave to amend, thereby voluntarily ending the process, a decrease from the two previous years. In 2017, 48 percent of complainants failed to amend their defective complaints, and in 2016, 51 percent failed to amend their complaint. This increased willingness to amend  inadequate complaints may be indicative of a greater desire by complainants to utilize the SPB informal hearing process rather than pursue their claims in Superior Court or as an affirmative defense to pending discipline appeals.

Of the 10 complaints accepted, seven were initially referred to the informal hearing process, two· were consolidated with an evidentiary appeal and set for evidentiary hearing, and one was referred to the investigatory hearing process. Of the seven referred to the informal hearing process, four were dismissed after hearing and one was granted after hearing. Two cases referred to the informal hearing process remain pending at the present time, as does the one case referred to the investigatory hearing process. One of the cases set for evidentiary hearing is also currently pending, while the other was resolved by stipulated settlement.

SPB Whistleblower  Retaliation  Complaints  Activity Report

Total
Filed	Complaints Accepted2	Complaints Not Accepted 3	
39	10	29	

Of the 10 accepted complaints, nine had been previously rejected and subsequently amended.
3  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. Universlty of California, California State University).

Disposition of Whistleblower Retaliation Complaints Administered within the Informal Hearing Process

Granted	Dismissed	Withdrawn

 	1	4	0	

Disposition of Whistleblower Retaliation Complaints Administered within the Evidentiary Hearing Process

Granted	Dismissed	Settled

 	0		0		1	

Ill.	Comparison of Whistleblower Retaliation Complaints Over Past Decade

Whistleblower Complaints
80
72
70

45

19

62	62	64
60
53	55
49	49
50
44	44
40	39
40	• Fil ed
Accepted
30	27
24
21

I

20	16

I

10
10	7
0	I
2008	2009	2010	2011	2012	2013	2014	2015	2016	2017	2018

Whistleblower Retaliation Complaints by Department

In 2018, approximately one third of Whistleblower Retaliation Complaints originated in the  California  Department  of  Corrections  and  Rehabilitation, totaling  12 complaints.

(CDCR is the largest state employer with more than 57,0004 state employees.) All other Departments had four or fewer complaints in 2018.

2018 Percentage of Whistleblower Complaints by Depart m ent

CDCR - California Department of Corrections & Rehabilitation

DOT - Department of  Transportation

CDPH - California Department of Public Health

DSH - Department of State Hospitals

CalVet - California Department of Veterans Affairs

CPU - California Public Utilities Commission

5%	DSH
8%

CDPH

DIR
5%

8%

DIR - Department of Industrial Relations

Special Concerns Regarding Complaints Against the California Courts

In 2010, Government Code section 8547.13 was added to the California Whistleblower Protection Act to extend protections to employees of the Supreme Court, a court of appeal, a superior court, or the Administrative Office of the Courts. An employee of the courts may file a written complaint with the SPB within 12 months of the most recent retaliation. The SPB shall investigate any such complaint in accordance with the procedures of the California Whistleblower Protection Act. The SPB makes a recommendation to the judicial hiring entity regarding whether retaliation resulted in an adverse action as to the employee, and if so, what steps should be taken to remedy the situation.

Pursuant to Government Code section 18671.1, all costs incurred by the SPB Appeals Division are to be reimbursed by government agencies pursuant to statutes administered by the SPB or by interagency agreement. In Fiscal Year 2017/18, respondent agencies were assessed $1650.00 for each whistleblower retaliation complaint filed and processed before the SPB.

4 Department of Finance, http://www.ebudget.ca.gov/budget/publicaiton/#/e/2018-19/Agency/5210 , as of June 4, 2019.

On October 4, 2018, the SPB received a complaint from an employee of a superior court. The employee alleged that she had raised concerns regarding a judge's failure to properly advise criminal defendants of their due process rights while appearing before the court. The concerns were submitted to the presiding judge and county court management. The complaint further alleges that she was then subjected to various forms of retaliation which ultimately concluded with her termination.

Despite the SPB's repeated attempts, neither the Judicial Council nor the named superior court would agree to provide reimbursement to the SPB for processing a whistleblower retaliation complaint. Therefore, the SPB closed the complaint and informed the complainant of her right to file a civil action in court.

Without funding reimbursement by the respondent agency, the SPB is unable to cover its costs in processing appeals and con,plaints. Because the courts are not part of the Executive branch, there is no mechanism available for the SPB to enforce payment.

If the courts refuse to reimburse the SPB for costs associated with whistleblower retaliation complaints filed against the courts, complainants are left without an administrative avenue for relief. Consequently, a superior court employee's only recourse is to file an action in the very same court that is the subject of the complaint.

The SPB recommends that the legislature amend the Government Code to require that the courts or Judicial Council reimburse the SPB for costs incurred in processing whistleblower retaliation complaints filed against the courts.

Detailed Listing - Whistleblower Retaliation Complaints Filed with SPB.
Calendar Year 2018

Number	Appeal Date	
Case Status	
Department	
Consolidated 5	
RDAT6	
Hearing Type	

1	
18-0008W	
1/2/2018	Closed - Notice of Findings (Granted)	
DOT		
No	
Informal	

2	
18-0087W	
1/22/2018	Closed - No Prima Facie Case	
DFA		
No		

3	
18-0138W	
1/31/2018	Closed - No Prima Facie Case	
DOT		
Yes		

4	
18-0223W	
2/14/2018	Closed - No Prima Facie Case	
CDCR		
No		

5	
18-0240W	
2/16/2018	Closed - Notice of Findings (Dismissed)	
CDCR		
Yes	
Informal	

6	
18-0259W	
2/20/2018	Closed- No Prima Facie Case	
CDCR		
Yes		

7	
18-0260W	
2/20/2018	Closed - No Prima Facie Case	
DSH		
Yes		

8	
18-0262W	
2/20/2018	Closed - No Prima Facie Case	
CalVet		
No		

9	
18-0333W	
3/6/2018	Closed - No Prima Facie Case	
CDCR		
No		

s 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.

6  ROAT: indicates whether complainant requested disciplinary action be taken.

Detailed Listing - Whistleblower Retaliation Complaints Filed with SPB
Calendar Year 2018

Number	Appeal Date	
Case Status	
Department	
Consolidated5	
RD AT6	
Hearing Type	

10	
18-0418W	
3/19/2018	
Closed - No Prima Facie Case	
CDCR		
No		

11	
18-0422W	
3/22/2018	Closed - No Prima Facie Case	
Water Resources Bd.		
Yes		

12	
18-0459W	
3/29/2018	Closed - No Prima Facie Case	
DSH		
No		

13	
18-0460W	
4/2/2018	Closed - Notice of Findings (Dismissed)	
State Center Comm. College Dist.		
Yes	
Informal	

14	
18-0611W	
4/27/2018	Closed - No Prima Facie Case	
Parks		
No		

15	
18-0618W	
4/30/2018	Closed - No Prima Facie Case	
CCFC		
No		

16	
18-0649W	
5/7/2018	Closed - No Prima Facie Case	
DOT		
No		

17	
18-0654W	
5/7/2018	Closed - No Prima Facie Case	
CDCR		
No		

18	
18-0766W	
5/23/2018	
Closed - No Prima Facie Case	
DOT		
Yes		

19	
18-0855W	
6/7/2018	
Closed - No Prima Facie Case	
CPUC		
Yes		

20	
18-0935W	
7/2/2018	Closed - Notice of Findings (Dismissed)	
CalVet		
Yes	
Informal	

Detailed Listing-Whistleblower Retaliation Complaints Filed with SPB
Calendar Year 2018

Number	Appeal
Date	
Case Status	
Department	
Consolidateds	
RDAT6	
Hearing Type	

21	
18-1064W	
7/9/2018	Closed - No Prima Facie Case	
CDPH		Yes		

22	
18-1102W	
7/16/2018	Closed - No Prima Facie Case	
CDCR		
Yes		

23	
18-1103W	
7/16/2018	Closed - Stipulated Settlement Agreement	
CDCR	18-1103WEK
(AA)	
Yes	
Evidentiary	

24	
18-1122W	
7/19/2018	Closed - No Prima Facie Case	
DIR		
No		

25	
18-1258W	
8/13/2018	Closed - No Prima Facie Case	
DSH		
No		

26	
18-1350W	
8/23/2018	Closed	No Prima Facie Case	
Student Aid Commission		
Yes		

27	
18-1449W	
9/17/2018	Closed - No Prima Facie Case	
CPUC		
Yes		

28	
18-1513W	
9/26/2018	
Open	
CDCR		
No	
Informal	

29	
18-1541W	
10/2/2018	Closed - No Prima Facie Case	
CDPH		
No		

30	
18-1543W	
9/28/2018	Closed - No Prima Facie Case	
EDD		
No		

31	
18-1557W	
10/4/2018	Closed-No Participation By Administrative Office of Courts	
Amador Superior Court		
Yes		

Detailed Listing -Whistleblower Retaliation Complaints Filed with SPB
Calendar Year 2018

Number	
Appeal Date	
Case Status	
Departm nt	
Consolidated5	
RDAT6	
Hearing Type	

32	
18-1570W	
10/8/2018	Closed - No Prima Facie Case	
DHCS		
No		

33	
18-1617W	
10/16/2018	
Open	
DIR		
Yes	
Informal	

34	
18-1700W	
10/31/2018	Closed - No Prima Facie Case	
CDCR		
No		

35	
18-1702W	
10/22/2018	Closed - No Prima Facie Case	
CDCR		
No		

36	
18-1714W	
11/1/2018	Closed - Notice of Findings (Dismissed)	
CDPH		
Yes	
Informal	

37	
18-1810W	
11/19/2018	
Closed - No Prima Facie Case	San Mateo Comm. College Dist.		
No		

38	
18-1914W	
12/3/2018	
Open	
OES	18-1914WEK
(AA)	
Yes	
Evidentiary	

39	
18-1918W	
12/10/2018	
Open	
CDCR		
Yes	
Investigatory