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Employing agency determines where public employees’ whistle-blower suits will be heard

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The California Supreme Court has ruled that when and how state employees can file whistle-blower lawsuits depends on which agency they work for.

  • Regular state employees can sue if they first ask for a ruling from the State Personnel Board.
  • California State University employees can sue if the State Personnel Board either issues a finding or fails to do so within 18 months; the courts are an additional remedy in those cases.
  • Employees of the University of California can sue only if the university’s internal review board doesn’t decide the case. In other words, the University of California can essentially end a whistle-blower suit by deciding that no whistle-blowing took place.

Recent case: Les Miklosy and Lucinda Messina were computer scientists for the University of California, working at the Lawrence Livermore National Laboratory. They repeatedly told management there were serious problems with the way the lab was testing nuclear weapons technology. Miklosy was fired, and Messina quit after she believed she also was being forced out.

Both filed internal whistle-blower complaints, alleging they had been punished for complaining about safety issues. An internal investigation concluded there was nothing to their retaliation claims. It found Miklosy had been fired for performance problems, while Messina was never fired.

Both then sued, alleging retaliation. The California Supreme Court upheld the dismissal of their lawsuit, pointing out that the part of the California Whistleblower Act that applied to University of California employees guaranteed an internal review and lawsuit only if the university didn’t make a quick decision. Otherwise, the university had the last word. (Miklosy & Messina v. Regents of the University of California, et al., No. S139133, California Supreme Court, 2008)

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