UC Whistleblower Webinar

Attorney-Client Privileged

May 19, 2010

Sandra L. McDonough, Esq.Paul, Plevin, Sullivan & Connaughton LLP

Overview of Today’s Program

• Review of relevant laws and policies• Top 5 Compliance Tips

– Lessons Learned from UC Cases

• Questions

Why is this training important?• Promote public policy of discouraging and

addressing retaliation against whistleblowers

• Following the whistleblower policies and timelines to the letter provides an absolute defense to a claim for damages, including punitive damages, under the WPA and could require judicial exhaustion on other claims

• Failing to follow the policies exposes the University and its employees to liability

Relevant Law – Gov. Code section 8547.10

• Prohibits intentional retaliation against an individual whistleblower who reports an improper governmental activity

• Awards economic and non-economic damages, punitive damages and attorneys fees

• Absolute defense to damages if the University timely processes retaliation complaints within the time limits set by the University

University Policy

• University of California Policy on Reporting and Investigating Allegations of Suspected Improper Governmental Activities (Whistleblower Policy) (April 2, 2008) – – http://www.ucop.edu/ucophome/coordre

v/policy/PP040208Policy.pdf

University Policy - WPP

• University of California Policy for Protection of Whistleblowers from Retaliation and Guidelines for Reviewing Retaliation Complaints (Whistleblower Protection Policy) (October 4, 2002) –– http://www.ucop.edu/ucophome/

coordrev/policy/10-04-02retaliation.pdf

Intaking Whistleblower Retaliation Complaints

• Determine whether complaint is timely and appropriate

• Develop plan of action• When in doubt about application of

whistleblower laws to complaint, investigate anyway

Top 5 Tips for Ensuring Compliance with the WPP in Processing Complaints

• Strictly comply with time requirements

• Understand the various players under the policy

• Carefully execute investigation• Understand burden of proof• Create and maintain an adequate

record

Timeliness

• Critical Importance: If even one deadline is missed by even one day, then the University and its employees lose the absolute defense to a whistleblower retaliation claim

• Extensions must be in writing• Be careful of “rewrites”

Critical Dates to Track

• Intake date of complaint• Assignment of complaint to RCO• Step deadlines if APM-140 or similar

grievance policy is utilized instead of whistleblower policy

• Final decision due from RCO• Final decision due from

Chancellor or delegee

Intake Date of Complaint

• Why is it important?– It is the date by which the

reasonableness and timeliness of the final decision will be evaluated

– It may trigger responsive deadlines under your particular local implementing policies

Date of Assignment to RCO

• RCO must submit written factual findings to Chancellor within 120 days of assignment of matter to RCO– Reasonable extensions may be granted,

but• Extensions should be in writing• Might even think about obtaining consent

from the complainant• Be careful to comply with extension deadlines

and requirements set by local policy

Coordination with Other Grievances

• WPP and local policies may allow coordination with other grievances, including APM, staff member or MOU grievances

• Consider whether to rely on findings in other grievances or whether to pursue own findings– Hold whistleblower complaint in abeyance if you

are waiting for other findings, or ensure delivery of other findings within 120 days

• Key: Communication

Findings from RCO and Decision from Chancellor

• Findings from RCO due 120 days from date of assignment, unless otherwise extended

• Ensure transmission of findings to Chancellor and document date of transmission

• Decision from Chancellor should be within reasonable time, or as otherwise required by policy

Best Practices for Timeliness• Have one individual in charge of

ensuring timeliness for each grievance• Read policies applicable to each

complaint• Set up automatic and back-up

reminders• Require written confirmation of timing

at each step and written transmittal of decisions and steps

• Finish the process

Key Players under WPP

• LDO• RCO• Chancellor• Step Hearing Officers• Arbitrator

Identify Key Players at Outset for Each Complaint

• Eliminate conflicts and repetition• Set out any changes/delegations

through a written designation• Every complaint file should have the

key players identified in writing

Key Decisions to Make Regarding the Investigation

• Who will conduct it?• How will the investigation be

conducted?• What will the work product look like?• When will the investigation be

conducted?

Who?

• Internal investigator• Outside investigator

– Attorney• Privileged/Not Privileged

– Non-attorney

• Consider conflicts• Familiarity with policies, law

and subject matter

How?

• Witness Interviews• Review documents and policies• Document every step of the process

appropriately• Remember to cycle

back with complainant• Hearing?

What?

• Give clear instructions to the investigator at the outset

• Form of work product– List of findings– Witnesses Interviewed– Summaries of key witness interviews– Documents Reviewed

• Executive Summary?• Draft or final version?

When?

• Make sure to build in enough time to conduct all steps of investigation

• Some local policies build in time for complainant to respond

• Does someone else need to review before it is final, or is it appropriate to do so?

Burden of Proof

• Two Part Test– Was the protected activity a contributing factor

to the adverse employment action?• Preponderance of the evidence standard

– If so, did the decisionmaker take the adverse employment action for legitimate, non-retaliatory business reasons?

• Clear and convincing evidence standard

• Separate inquiry: Reasonable belief that action is justified based on factors other than the protected activity

• Standard of proof?

Preponderance of the Evidence

“More likely than not that the fact is as the party alleges it to be.”

Clear and Convincing Evidence

“Substantially more likely than not that the allegation is in fact true.”

Best Practices on Burden of Proof

• Provide investigator with copy of WPP, and highlight burden of proof

• Instruct investigator to include burden of proof in findings of fact

• Instruct Chancellor to include burden of proof in conclusions and decision

Keep an Accurate and Complete Record

• Create one official file that contains delegations, transmittal letters, fact findings and decisions

• Designate a custodian of the file• Keep accurate and current notes

Why document?

• Provides a complete record for writ purposes

• Provides documentation to support defenses of timeliness and adequacy of process

• Assists memory when the need to testify arises in later proceedings

Questions?