Whistleblower Protection: Complaint Procedures for Allegations of Retaliation

Definition:California State University San Marcos (CSUSM) employees are prohibited from engaging in any improper governmental activities or activities that create significant threats to the health and/or safety of the campus community in the performance of their official duties. CSUSM employees, applicants for CSUSM employment and all other state employees should be free to report waste, fraud, abuse of authority, violation of law, or threat to public health occurring at CSUSM without fear of retribution. No individual who makes a protected disclosure or participates in an investigation concerning allegations of improper governmental activity or the existence of a condition that may significantly threaten the health or safety of employees or the public shall for that reason be subjected to any reprisal, retaliation, threat, coercion or similar improper act. Any member of the campus community who intentionally engages in such retaliatory conduct will be subject to personnel action in addition to any penalty or civil liability provided by law. Office of the Chancellor Executive Order No. 822 provides procedures pursuant to which employees or applicants for employment may file complaints of retaliation. The Executive Order further provides definitions applicable to the complaint procedure. CSUSM refers persons wishing to make complaints of retaliation to Executive Order No. 822, which may be found at http://www.calstate.edu/EO/EO-822.pdf, as it may be modified from time to time. A copy of Executive Order No. 822 is attached to this policy. Employees or applicants for employment who believe that they have suffered reprisal, retaliation, threats, coercion or similar acts for having made a protected disclosure may file a written retaliation complaint with their supervisor or manager or directly with the Vice Chancellor of Human Resources, at the Office of the Chancellor, California State University pursuant to Office of the Chancellor Executive Order No. 822. Written protected disclosure retaliation complaints received by CSUSM supervisors and managers shall be forwarded for processing to the Assistant Vice President, Human Resources and Equal Opportunity. A complaint of retaliation filed with the supervisor or manager must include all of the information required by section IV.C.2-6 of Executive Order No.822. CSUSM has created a complaint form for persons wishing to file such complaint. Persons wishing to file a complaint with the Vice Chancellor of Human Resources must use the form attached to Executive Order No. 822. The complaint alleging retaliation must be signed by the complainant and contain a sworn statement that the contents of the written complaint are true or believed by the complainant to be true, under penalty of perjury.
Authority:The California Whistleblower Protection Act (Gov. Code sec. 8547 et. seq., specifically sec. 8547.12 (a)); Executive Order No. 822.
Scope:This policy and any related procedures apply to all current and future employees or applicants for employment at Cal State San Marcos.
Responsible Division:Finance & Administrative Services
Approval Date:03/25/2008
Implementation Date:03/25/2008
Originally Implemented:03/01/2004
Signature Page/PDF:View Signatures for Whistleblower Protection: Complaint Procedures for Allegations of Retaliation Policy
Related Documents and Forms:Document 1
Document 2


Procedure

I. REPORTING IMPROPER ACTIVITIES OR SIGNIFICANT THREATS TO HEALTH AND SAFETY. 

Employees and applicants for employment who have made a protected disclosure pursuant to E.O. 929, or directly with the State Auditor, and who believe that they have been retaliated against for such a disclosure may file a complaint under this procedure.

II. CAMPUS PROCEDURES 

Under section 8547.12(a) of the Government Code, employees and applicants for employment may file a written complaint alleging retaliation for having made a protected disclosure with their supervisor or manager or with the chancellor's designee. A complaint filed with a campus supervisor or manager must include all of the information required under Section IV.C.2-6 below. All such complaints filed on campus must promptly be referred to the vice chancellor of human resources in the Chancellor's Office. 

III. DEFINITIONS 

A) "Employee" refers to any person employed by CSUSM. 

B) "Applicant for employment" refers to an individual who has completed and submitted the application form for a specific, available position at CSUSM. 

C) "Complainant" means an employee or applicant for employment who files a complaint of retaliation under this policy and procedure. 

D) All written communications between a complainant and the CSUSM pursuant to this policy and procedure must be personally delivered or sent by certified mail through the U.S. mail, return receipt requested. If personally served, the date on which the communication was filed, sent, transmitted and/or received for purposes of this policy is the date of personal delivery. If sent by certified mail, the date on which the communication was filed, sent or transmitted is the postmark date on the written communication; the date on which the communication was received is deemed to be the postmark date plus four (4) working days. 

E) "Retaliation" refers to the direct or indirect use or attempted use by an employee of his or her official authority or influence for the purpose of intimidating, threatening, coercing, commanding, or attempting to intimidate, threaten, coerce, or command any employee or applicant for employment for the purpose of interfering with that person's rights under the California Whistleblower Protection Act, including, but not limited to, any "protected disclosure," as that term is defined in the Act and in this policy and procedure. "Use of his or her official authority or influence" includes promising to confer, or conferring, any benefit; effecting, or threatening to effect, any reprisal; or taking, or directing others to take, or recommending, processing, or approving, any personnel action, including, but not limited to, appointment, promotion, transfer, assignment, performance evaluation, suspension, or other disciplinary action. 

F) "Improper governmental activity" means any activity by a CSUSM department or employee that is undertaken in the performance of the employee's official duties, whether or not that action is within the scope of his or her employment, and that (1) is in violation of any state or federal law or regulation, including but not limited to, corruption, malfeasance, bribery, theft of government property, fraudulent claims, fraud, coercion, conversion, malicious prosecution, misuse of government property, or willful omission to perform duty, or (2) is economically wasteful, or involves gross misconduct, incompetence, or inefficiency. 

G) "Protected disclosure" means any good faith communication that (1) discloses or demonstrates an intent to disclose information that may evidence (a) an improper government activity, or (b) any condition that may significantly threaten the health or safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition. And (2) was filed pursuant to E.O 929 or with the State Auditor. H. "Working days" means Monday through Friday excluding all officially recognized university holidays or closure of the campus. 

IV. GENERAL PROVISIONS 

A. All time limits refer to working days. B. Time limits set forth in this policy may be extended by mutual agreement in writing between the complainant and the vice chancellor of human resources. If the complainant, the vice chancellor, or any material witness to the investigation is on approved leave of three (3) days or more, the time limits shall be extended by the length of the leave; provided, however, that an investigation of a written complaint must be completed no later than sixty (60) days prior to the expiration of eighteen (18) months from the date the complaint was filed, and the chancellor's designee must issue a letter of determination with respect to the complaint no later than eighteen (18) months from the date the complaint was filed. E. Complaints, responses and investigations under this procedure shall be shared only with individuals who have a legitimate business reason to know. 

V. COMPLAINT PROCESS 

A) An employee or applicant for employment must file a written complaint under this procedure within twelve (12) months of the alleged act of retaliation. 

B) The complaint shall be made on a form developed by the vice chancellor of human resources and attached hereto as "Attachment 1". However, any written complaint that falls within the scope of the policy that clearly indicates the intent to file a complaint of retaliation for a protected disclosure or specifically references this policy will be addressed in accordance with this procedure. 

C) The written complaint must include all of the following information, or may be rejected as inadequate: 

  1. Be addressed or directed to the vice chancellor of human resources.
  2. The name and mailing address of the complainant, the complainant's working title, or position applied for if the complainant was an applicant for employment.
  3. A detailed description of the specific actions that constituted the alleged improper governmental activity or condition that may significantly threaten the health or safety of employees or the public, including the name(s) and the title(s) of the CSUSM employee(s) or official(s) allegedly engaged in the improper governmental activity or responsible for the health or safety condition.
  4. The name of the university official or other state employee(s) to whom the improper governmental activity or health or safety condition was reported, and the date and manner of the disclosure.
  5. A description of the specific actions taken that constituted the alleged actual or attempted retaliation, including the date or dates of such actions, and the names and titles of the university officials who allegedly took the retaliatory actions, and an explanation of the reasons why the complainant believes those actions were in retaliation for a "protected disclosure."
  6. The complaint must be signed, dated, and contain a sworn statement that the contents of the written complaint are true, or are believed by the complainant to be true, under penalty of perjury. 

VI. COMPLAINT REVIEW 

A) The vice chancellor of human resources will acknowledge to the complainant in writing having received the complaint, whether directly from the complainant or from a campus, within ten (10) days of its receipt by the vice chancellor. The acknowledgment may include a request for additional information.

B) The vice chancellor for human resources will commission an investigation. This investigation may, at the vice chancellor's discretion, be conducted by a designee from the Chancellor's Office or from the campus, or by an external investigator. The external investigator shall be retained by the campus president, or by the chancellor if the complaint arises at the Chancellor's Office, in consultation with the Office of General Counsel and the vice chancellor of human resources. 

C) The complainant is required to fully cooperate with the investigator(s) including but not limited to meeting with the investigator(s) for an initial interview. The complainant shall be contacted by the designated investigator(s) in order to schedule this initial interview. This interview shall be scheduled no later than thirty (30) days from the receipt of the complaint unless it is delayed in conformity with Section IV.B above. In this initial interview the complainant shall be given the opportunity to present a list of witnesses and documentary evidence in support of the complaint. In the event that the complainant fails to fully cooperate with the investigator(s), including but not limited to failing or refusing to participate in a timely scheduled interview, the investigation will be completed based upon the information available, and the decision issued by the vice chancellor for human resources will be made on the merits based upon available evidence, notwithstanding the complainant's failure or refusal to participate. 

D) The investigator(s) shall conduct an investigation. This investigation shall include an interview with the complainant, a review of any supporting documentation supplied by the complainant, a review of any response to the complaint supplied by the campus or employees alleged to have taken retaliatory action, the interviewing of witnesses, and any other action deemed appropriate by the investigator(s) in order to complete the investigation. 

E) CSUSM employees are required to cooperate with the investigation and be completely honest in answering questions and providing information to the investigator(s). 

F) The investigator(s) shall transmit a written report to the vice chancellor of human resources within sixty (60) days of the filing of the complaint. The report shall include a summary of the investigation and a conclusion whether or not retaliation for a protected disclosure occurred. 

G) The vice chancellor for human resources shall transmit the summary and conclusion of the investigation to the complainant within ten (10) days of the vice chancellor's receipt of them from the investigator(s). The complainant may file a written response to the summary and conclusion with the vice chancellor within fourteen (14) days of receipt of the summary and conclusion. 

H) The vice chancellor of human resources shall respond to the complainant with a letter of determination within fourteen (14) days of receipt of the complainant's written response or the expiration of the time limits for the complainant to file a response as outlined in paragraph G, whichever date is later. This letter of determination will constitute the final CSUSM decision regarding the complaint, pursuant to Government Code section 8547.12(c).