Tuesday, December 28, 2010

The Sovereign Fox Among the Chickens: The University of California.

The University of California is a special creature of the State Constitution. Our Supreme Court in 2008 described it as having broad autonomy in self-governance, even to the extent of devising internal quasi-judicial procedures and remedies for the resolution of employer-employee disputes. The Supreme Court has interpreted the California Whistleblower Protection Act [section 8547.10, subdivision (c), pertaining to employees of the University of California.] to confer upon the University uniquely the power to establish its own investigative procedure and fact finding to arrive at a final decision, unreviewable except by Writ of Mandate, and when reached, ending an employee’s further recourse. That is, there is no cause of action in common law tort or under the Whistleblower Protection Act to bring a separate and independent court action for damages.

This special conferral of nearly autonomous power reflects the power invested in the Board of Regents as uniquely suited to govern the affairs and practices of the University system. The State Personnel Board likewise has substantial autonomy to oversee employment relations of the other state agencies, but not the kind of nearly unreviewable power given to the Regents. In 2001 the Legislature accorded an aggrieved an employee the right to pursue a court action even if the Agency reached a decision on the employee’s internal complaint. The Legislature however did not give that same right to University employees.

The result is that the “exhaustion of remedies” behind Govt. C. Section 8547.10 has real teeth. It is the exclusive remedy available to the University employee if the University reaches a decision. Only if the University fails to reach a decision within the time accorded by the statute is the employee allowed the “back up” remedy of bringing a court action.

In conclusion, the University of California stands apart from other state agencies in that it may conclusively determine if it, as an employer, has violated the employment rights of a University employee in retaliating against an employee under the Whistleblower Protection Act. This quasi-sovereign fox must surely enjoy the taste of the hapless chickens.

See generally: Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 900.

© 2010 FXP

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