Metropolitan News-Enterprise


Friday, February 27, 2009


Page 1


Supreme Court Rejects Limitation on Whistleblower Actions


By STEVEN M. ELLIS, Staff Writer


Government employees who allege retaliation for whistleblowing do not have to obtain a reversal of adverse findings by the State Personnel Board before they can sue for damages in the superior court, the California Supreme Court unanimously ruled yesterday.

Reversing a decision by the Third District Court of Appeal, the justices held such employees may bring an action under the California Whistleblower Protection Act as soon as the board issues findings on a complaint before it or the timeline for the board to do so passes.

Carole M. Arbuckle brought suit in 2003 against the State Board of Chiropractic Examiners and its executive director, Jeanine Smith, alleging retaliation after Arbuckle noted that the SBCE’s chairperson, Dr. Sharon Ufberg, failed in 2001 to timely pay a renewal fee and practiced with an invalid license for over five months.

Unlicensed Chiropractor

Arbuckle’s duties including cashiering and license renewal, with involvement in issuing citations for unlicensed practice, and she inquired about citing Ufberg in the following months when issuing citations to other individuals, but was allegedly directed not to do so by Smith.

Claiming the events caused a breakdown of trust and cooperation in the workplace resulting in changed duties, denial of assignment requests and a transfer, Arbuckle filed a complaint with the State Personnel Board in 2002, but the board’s executive officer, after considering documentary evidence and written argument, issued adverse findings and recommending dismissal.

The officer concluded that some of Arbuckle’s alleged whistleblower activity did not constitute protected disclosures of improper governmental activities, that other allegedly retaliatory acts were not sufficiently adverse, and that there was no nexus shown between the disclosure and the adverse employment actions, finding persuasive the SBCE’s evidence that its actions were unrelated to protected disclosures.

Under the State Personnel Board’s regulations at the time, complainants who received an adverse finding from the executive officer could petition for a hearing before the board, but Arbuckle opted instead to file an action for damages in the Sacramento Superior Court.

Judge Shelleyanne W.L. Chang denied the SBCE’s subsequent motion for summary judgment, but the Court of Appeal issued an alternative writ staying the proceedings.

Presiding Justice Arthur G. Scotland, and Justices George Nicholson and Fred Morrison, who retired in January, then ruled that Arbuckle had to succeed in having the adverse findings set aside before she could proceed with her superior court action, because the findings would otherwise remain binding and preclude recovery in the damages action.

Purpose Undermined

But on appeal, Justice Joyce L. Kennard wrote that the Court of Appeal’s holding undermined the Legislature’s purpose of protecting whistleblower employees by assuring them the procedural guarantees and independent factfinding of a superior court damages action.

She explained:

“The error in the Court of Appeal’s reasoning lies in its assumption that Arbuckle’s failure to pursue further administrative remedies, coupled with her failure to seek writ of mandate review of the State Personnel Board’s findings, elevated those findings to the same status as a final civil judgment rendered after a full hearing, precluding relitigation of the factual issues the board’s executive officer resolved against Arbuckle….

“Nothing in Government Code section 8547.8(c), suggests that the Legislature intended the damages remedy created in that provision to be so narrowly circumscribed, and such a narrow interpretation of the damages remedy would hardly serve the Legislature’s purpose of protecting the right of state employees ‘to report waste, fraud, abuse of authority, violation of law, or threat to public health without fear of retribution.’”

The case is State Board of Chiropractic Examiners v. Superior Court (Arbuckle), 09 S.O.S. 1135.


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