2017 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 2018

1

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

June 30, 2018

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, 2017 through December 31, 2017.

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 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, 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 2017, 49 whistleblower retaliation complaints were filed with the SPB. This is similar to calendar year 2016, when the SPB received 55 whistleblower  retaliation complaints. Of the 49 complaints received in 2017, 7 complaints were accepted.        Of the 42 complaints that were not accepted, 48 percent of complainants

chose not to amend their complaint following the SBP’s dismissal with leave to amend. This is similar to 2016, when 51 percent of complainants, whose complaints were not accepted, chose not to amend their retaliation complaints following dismissal with leave to amend. In this regard, 2016 and 2017 are in contrast to 2015, where 74 percent of complainants, whose complaints were not accepted, submitted amended complaints. This contrast may be indicative of a desire on behalf of whistleblower complainants to bypass the SPB informal hearing process in favor of pursuing their complaint in  Superior Court or as an affirmative defense to pending discipline appeals.

Of the 7 complaints accepted, 6 were initially referred to the informal hearing process. One of the complaints was dismissed prior to the informal hearing. Two of the complaints were dismissed following an informal hearing and 2 were withdrawn prior to the informal hearing. One of the complaints referred to informal hearing was granted. This matter was settled by the parties after an evidentiary hearing was set. The final complaint was consolidated with an evidentiary appeal and set for evidentiary hearing.

SPB Whistleblower Retaliation Complaints Activity Report (January 2017 – December 2017)

Total Filed	Complaints Accepted	Complaints Not Accepted2	
49	7	42	

Disposition of Whistleblower Complaints Administered within the Informal Hearing Process

Granted	Dismissed	Withdrawn	
1	3	2	

Disposition of Whistleblower Complaints Administered within the Evidentiary Hearing Process

Granted	Dismissed	Settled	
0	0	1	

2 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).

Comparison of Whistleblower Appeals filed each Year

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

1	
17-0168W	
2/6/2017	
Closed - No Prima Facie Case	
CDCR		
No		

2	
17-0252W	
2/21/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

3	
17-0282W	
2/28/2017	
Closed - No Prima Facie Case	
DHS		
No		

4	
17-0410W	
3/29/2017	
Closed - No Prima Facie Case	
DFEH		
No		

5	
17-0430W	
3/27/2017	
Closed - No Prima Facie Case	
Lottery		
No		

6	
17-0450W	
4/10/2017	
Closed – Notice of Findings (Dismissed)	
DIR		
Yes	
Informal	

7	
17-0481W	
4/3/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

8	
17-0484W	
4/3/2017	
Closed - No Prima Facie Case	
DMV		
Yes		

3 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.

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

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

9	
17-0823W	
6/1/2017	
Closed - No Prima Facie Case	
DOE		
Yes		

10	
17-0873W	
6/5/2017	
Closed - No Prima Facie Case	
CDCR		
No		

11	
17-0874W	
6/5/2017	
Closed - No Prima Facie Case	
CDCR		
No		

12	
17-0905W	
6/12/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

13	
17-0929W	
6/13/2017	
Closed - No Prima Facie Case	
CDCR		
No		

14	
17-0981W	
6/28/2017	
Closed - Notice of Findings (Granted)	
CDCR		
Yes	
Informal	

15	
17-1010W	
7/3/2017	
Closed – Executive Order	
DOC		
Yes	
Informal	

16	
17-1023W	
7/5/2017	
Closed - No Prima Facie Case	
EDD		
No		

17	
17-1028W	
7/10/2017	
Closed - No Prima Facie Case	
DOE		
Yes		

18	
17-1103W	
7/18/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

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

19	
17-1119W	
7/21/2017	
Closed - No Prima Facie Case	
CalPERS		
Yes		

20	
17-1159W	
7/28/2017	
Closed - No Prima Facie Case	
EDD		
Yes		

21	
17-1160W	
7/31/2017	
Closed - No Prima Facie Case	
DOF		
Yes		

22	
17-1207W	
8/9/2017	
Closed - No Prima Facie Case	
CDCR		
No		

23	
17-1221W	
8/11/2017	
Closed - Withdrawn	
ABC		
Yes		

24	
17-1218W	
8/11/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

25	
17-1223W	
8/11/2017	
Closed - No Prima Facie Case	
PERB		
Yes		

26	
17-1266W	
8/17/2017	
Closed - No Prima Facie Case	
PIA		
No		

27	
17-1364W	
9/1/2017	
Closed - No Prima Facie Case	
CalVet		
Yes		

28	
17-1365W	
9/1/2017	
Closed - No Prima Facie Case	
CalVet		
Yes		

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

29	
17-1366W	
9/1/2017	
Closed - No Prima Facie Case	
CalVet		
Yes		

30	
17-1391W	
9/8/2017	
Closed - No Prima Facie Case	
EDD		
Yes		

31	
17-1396W	
9/8/2017	
Closed – Notice of Findings (Dismissed)	
CDCR		
Yes	
Informal	

32	
17-1443W	
9/15/2017	
Closed - No Prima Facie Case	
CEC		
No		

33	
17-1472W	
9/20/2017	
Closed - No Prima Facie Case	
CDCR		
Yes		

34	
17-1476W	
9/21/2017	
Closed - No Prima Facie Case	
CPUC		
No		

35	
17-1535W	
10/2/2017	
Closed - No Prima Facie Case	
CalVet		
Yes		

36	
17-1536W	
10/2/2017	
Closed - Withdrawn	
CDCR		
Yes	
Informal	

37	
17-1581W	
10/5/2017	
Closed - No Prima Facie Case	
CDCR		
No		

38	
17-1621W	
10/13/2017	
Closed - No Prima Facie Case	
CalFire		
No		

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

39	
17-1697W	
10/24/2017	
Open	
CDTFA/BOE	
17-1697WEK AA	
Yes	
Evidentiary	

40	
17-1698W	
10/24/2017	
Closed - No Prima Facie Case	
DSH		
No		

41	
17-1799W	
11/13/2017	
Closed - Withdrawn	
DWR		
Yes	
Informal	

42	
17-1802W	
11/13/2017	
Closed - No Prima Facie Case	
Cal Lottery		
No		

43	
17-1840W	
11/17/2017	
Closed - No Prima Facie Case	
Cal Lottery		
No		

44	
17-1841W	
11/16/2017	
Closed - Withdrawn	
CUIAB		
Yes		

45	
17-1910W	
12/14/2017	
Closed - No Prima Facie Case	
DTSC		
Yes		

46	
17-1970W	
11/27/2017	
Closed - No Prima Facie Case	
CDPH		
No		

47	
17-1942W	
12/11/2017	
Closed - No Prima Facie Case	
CalPers		
No		

48	
17-1973W	
12/11/2017	
Closed - No Prima Facie Case	
EDD		
Yes		

Number	Appeal Date

Case Status	Department	Consolidated3	RDAT4	Informal/Evidentiary
Hearing

Facie Case

49	17-1975W	12/11/2017	Closed - No Prima

DOT	Yes