Mize-Kurzman v. Marin Community College District (202 Cal. App. 4th 832, 2012)

Opinion

KLINE, P. J.

INTRODUCTION

Plaintiff Pamela Mize-Kurzman appeals from a judgment in favor of defendants Marin Community College District and its board of trustees (collectively, district), following a jury trial on her claims that the district was liable under two California “whistleblower” protection statutes, Labor Code section 1102.5 and Education Code section 87160 et seq. Plaintiff contends the trial court committed reversible error in jury instructions it gave that were patterned upon federal law; that the errors were compounded by erroneous answers to the jury’s questions; that the court unduly pressured the jury to return a verdict; and that the court committed reversible error when it allowed the district to present evidence of plaintiff’s retirement pension on the issue of her mitigation of damages and instructed the jury that it could determine whether such retirement pension should reduce any damages. We shall conclude that three of the court’s instructions were erroneous and require reversal and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff has been employed by the district since July 1, 1973. From 1981 through June 30, 2007, she was employed as an administrator. She was promoted to dean of enrollment services in 1994, pursuant to the settlement of a previous lawsuit against the district. (The dean was an “at will” position.) In July 2004, Frances White became the superintendent and president of the district. Plaintiff was one of several vice-presidents and deans who reported directly to White. In January 2005, in addition to plaintiff’s regular duties as dean of enrollment services, development and special programs, White assigned plaintiff the duties of the recently vacated position of dean of student development and special services. Plaintiff was also appointed to act as interim dean for social and behavioral sciences. On January 29, 2006, Anita Martinez was hired as the vice-president of student learning and was plaintiff’s direct supervisor.

A. Alleged Disclosures

Beginning in April 2006, plaintiff made four claimed disclosures of what she believed to be violations of law or regulations to various individuals and entities;

1. Alleged tampering with the hiring process. In April 2006, plaintiff reported to White her concerns that there had been an interference in the hiring process for the position of director of student support services and English as a second language (ESL). Plaintiff was on the interview committee that was to recommend candidates to White. The committee met and unanimously recommended one candidate. The human resources clerk immediately made a call and then informed the committee that the “President” wanted it to recommend an additional candidate, and the committee did so. The human resources clerk then told the committee that the “President” wanted three candidates from which to choose. The committee refused to recommend a third candidate. After the committee made its recommendation of two candidates, plaintiff sought out White, who was not on campus. Plaintiff realized the human resources clerk had been talking to Martinez and not to White. Plaintiff met with Martinez and told her what had happened in the committee. Martinez was visibly angry and told plaintiff that Martinez wanted a specific person for the position. On April 8, 2006, plaintiff sent an e-mail to White, stating that the committee had “the strong opinion that the job was being set up for a specific candidate.” Although plaintiff did not advise White that she thought the interference by Martinez was illegal, she believed White would know this because White’s Web site contained an Education Code section stating jobs could not be promised to someone and that the process was required to be fair and open. Plaintiff testified that she viewed Martinez’s apparent effort to include a particular person as a finalist as “tampering with the process.” She believed Martinez’s interference was a violation of the Education Code and she wanted to warn White.

2. La Academia grant. Also in April 2006, plaintiff reported to Martinez and White that she believed certain provisions of the La Academia Project in the Educational Excellence Innovation Fund (EEIF) proposal for the 2006-2007 school year, were unconstitutional in targeting scholarship moneys to Hispanic students. Plaintiff had no involvement with the EEIF program, which was unrelated to her department. Plaintiff had heard that the EEIF proposal granted scholarships from district funds for Latino students only. (White, who had created the EEIF at the College of Marin, testified that was not in fact the case.) Plaintiff was concerned this might be an illegal use of public funds “to fund a specific ethnic group or provide services for a specific ethnic group.” She checked with the district’s outside legal counsel (colloquially referred to as “Bob Henry’s office”), and was given general advice that “the Latino student scholarship fund violates the California Constitution if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin.”

On April 10, 2006, plaintiff sent an e-mail to White, copying Martinez and others, incorporating the response from outside legal counsel that “A Latino student scholarship fund violates the law if it awards scholarships derived from public funds to students based solely upon their ethnicity or national origin,” and stating she had confirmed this with Bob Henry’s office. Martinez at some point met with the grant proposer and pointed out that publicly funded programs, including the EEIF, could not discriminate against students and that the grant had to be rewritten so that it would serve all qualified and eligible students. The grant was revised to take out the singular reference to Latinos. White testified that she told plaintiff the EEIF was not for scholarships. Martinez testified she already knew about these types of programs, that what plaintiff said about the unlawfulness of using state money in targeted scholarships was accurate, but that Martinez did not need to see a legal opinion about it. Martinez verbally ordered plaintiff not to contact outside counsel without checking with her first.

3. Registration without payment of fee. In July and August 2006, plaintiff told Martinez that she believed the district’s new policy of allowing students who owed fees to register even if they had outstanding unpaid fees, and also without paying the then current registration fee, was illegal. Plaintiff based her assertion on information she had received in the past from Bob Henry’s office and from the chancellor’s office. She also conducted an Internet survey on a “list-serv” of colleagues on this issue. On August 24, 2006, plaintiff sent an e-mail to Martinez raising the issue of the legality of the directive. By late August, White knew plaintiff was questioning whether it was appropriate for the district to register students who owed fees to the college. Plaintiff testified she was “fairly certain” the policy directive from Martinez violated the Education Code. She believed there was a significant risk of liability to the district that could result in penalties upon the college. On September 19, 2006, plaintiff reviewed a legal opinion on the chancellor’s office Web site and sent an e-mail to Ralph Black, counsel for the chancellor’s office, on the topic. Plaintiff received a response from Black, citing an opinion of the chancellor’s office on October 26, 2006, and forwarded it to Martinez, who shared it with White. White knew of this opinion that the district should not allow indefinite deferral of fees. At trial, the legal experts for the parties disagreed as to whether a community college was required to deny enrollment to students who owed money.

4. Citizenship inquiries. In February 2006, Martinez had directed plaintiff to remove questions asking students to provide citizenship and residency information from the credit class application for admission. Based on information she had received from Bob Henry’s office and the chancellor’s office over the years, plaintiff told Martinez she believed the policy was illegal. In March, Martinez made statements at a meeting of the college’s management council that plaintiff attended, stating that the college did not have to ask for citizenship information on the noncredit application. In connection with this directive, plaintiff inquired of Black of the chancellor’s office whether student residency information should be retained for noncredit students. In March 2007, plaintiff informed Martinez that the information was a legally required element of data collected by the California Community Colleges Chancellor’s Office. At trial, the parties’ experts disagreed as to whether community college districts were required to classify every student, including those enrolling exclusively in noncredit classes, as either residents or nonresidents.

B. Asserted Retaliation

Following plaintiff’s April 10, 2006 e-mail to White and others stating that she believed the La Academia Project violated the California Constitution, White responded to her that the EEIF was “not for scholarships.” A trail of e-mails ensued and on April 11, 2006, Martinez directed plaintiff in writing “per my last email, could you please delay further inquiry until we discuss how best to proceed.” On April 11, 2006, White directed plaintiff to “please stop the email discussion.” Martinez directed plaintiff that she “should not call Bob Henry’s office,” because the district’s legal expenses “were getting high.” (Martinez testified she directed plaintiff not to contact any legal counsel—and did not limit the prohibition to Bob Henry’s office.)

In July 2006, plaintiff discovered via an organizational chart that the district had reorganized her position, changing her title to dean of enrollment services, and taking away a significant number of her duties including her membership in the academic standards committee, which she considered one of the most important elements of her job, as it involved policymaking and ensuring the district complied with education laws. She considered this a demotion.

In the fall of 2006, White implemented a new policy restricting contact with outside counsel. She directed that deans and directors should not contact attorneys without prior approval.

Plaintiff sent Martinez an e-mail on October 30, 2006, alleging Martinez had directed her to do “something illegal” by allowing students to register with outstanding debts and that this could expose the district to a large monetary penalty. In response, Martinez issued four written orders to plaintiff, reprimanding her for seeking a legal counsel opinion from the chancellor’s office in violation of Martinez’s previous directive and for attempting “to cast [herself] in the role of a whistleblower.” Martinez ordered plaintiff to speak with Martinez first, in the event she believed some action the college had taken or would take was impermissible, illegal or fiscally unsound and that Martinez would request a legal opinion or advice and/or speak with the cabinet. Second, plaintiff was to seek Martinez’s permission before circulating questions or participating in any e-mail discussion on any official community college list-servs on any topic related to the legality or permissibility of college actions. Third, she was to provide Martinez a copy of any correspondence she undertook on behalf of the college regarding general policy or practice, especially if questions of legality or permissibility could arise. Fourth, she was not to contact legal counsel in the chancellor’s office, unless she had gone through the administrative process, including receiving Martinez’s express permission. Failure to comply with the directives would “be seen as insubordination.”

Plaintiff disputed Martinez’s imposition of discipline as unwarranted. Martinez responded that “a further response from you will be deemed an act of insubordination.”

At the last regular board meeting before the March 15, 2007 deadline to. give notice of removal to an administrator, upon the recommendations of White and Martinez, the board released plaintiff from her administrative assignment and placed her on immediate paid administrative leave. Earlier that day, White and Martinez had signed a negative performance evaluation of plaintiff. Plaintiff was not shown the evaluation on that date, although she testified she had been available. Because plaintiff had tenure rights in the district, she was-reassigned to a counselor position with the district. She was serving in that position at the time of trial.

Plaintiff filed her initial complaint on July 19, 2007, and a first amended complaint on January 16, 2008. The court dismissed four of plaintiff’s causes of action and the case proceeded to trial on three causes of action alleging violations of Labor Code section 1102.5, subdivisions (a) and (b) and violation of Education Code section 87160 et seq. On September 8, 2009, plaintiff dismissed her Education Code claim against individual defendants White and Martinez. .

The jury deliberated from September 9 through 11, 2009. It found against plaintiff on all three of her claims. This timely appeal followed.

DISCUSSION

I. Instructions

The court gave two special instructions explaining the requirements for whistleblower claims under the Labor Code and Education Code sections at issue. Plaintiff contends special jury instructions Nos. 2 and 3 contained five federally based limitations on what constituted “disclosures” that were inapplicable to her California “whistleblower” claims under Labor Code section 1102.5, subdivision (b) and Education Code sections 87160 through 87164. She further contends that even if federal law provided applicable standards, the instructions given were erroneous interpretations of the federal law.

Plaintiff challenges that portion of special instruction No. 2 regarding violation of Labor Code section 1102.5, subdivision (b) that read: “Plaintiff must prove that any disclosure of information was made in good faith and for the public good and not for personal reasons. Debatable differences of opinion concerning policy matters are not disclosures of information within the meaning of paragraph 1. Information passed along to a supervisor in the normal course of duties is not a disclosure of information within the meaning of paragraph 1. Reporting publicly known facts is not a disclosure of information within the meaning of paragraph 1. Efforts to determine if a practice violates the law are not disclosures of information within the meaning of paragraph 1.”

Similarly, plaintiff contends the court erroneously included the following paragraph in special instruction No. 3 regarding retaliation for whistleblowing in violation of Education Code section 87160 et seq.: “A ‘protected disclosure’ means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence an improper governmental activity. In that regard, Plaintiff must prove that any disclosure was made in good faith and for the public good and not for personal reasons. Debatable differences of opinion concerning policy matters are not protected disclosures. Information passed along to a supervisor in the normal course of duties is not a protected disclosure. Reporting publicly known facts is not a protected disclosure. Efforts to determine if a practice violates the law are not protected disclosures.”

A. Standards of Review

“ ‘The propriety of jury instructions is a question of law that we review de novo. [Citation.]’ (Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 82 [89 Cal.Rptr.3d 34].)” (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects (2010) 187 Cal.App.4th 945, 961 [114 Cal.Rptr.3d 644].) Where it is contended that the trial judge gave an erroneous instruction, we view the evidence in the light most favorable to the claim of instructional error. (Ayala v. Arroyo Vista Family Health Center, supra, 160 Cal.App.4th at p. 1358; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, ¶ 8:120, pp. 8-75 to 8-76.) In other words, we assume the jury might have believed the evidence favorable to the appellant and rendered a verdict in appellant’s favor on those issues as to which it was misdirected. (Henderson v. Harnischfeger Corp., supra, 12 Cal.3d at p. 674; Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 655; Eisenberg et al., ¶ 8:120, p. 8-76.)

“ ‘That is not to say, however, that a failure properly to instruct a jury is necessarily or inherently prejudicial.’ [Citation.]” (Whiteley v. Philip Morris, Inc., supra, 117 Cal.App.4th at p. 655.) “In Soule v. General Motors Corp. (1994) 8 Cal.4th 548 [34 Cal.Rptr.2d 607, 882 P.2d 298] (Soule), the California Supreme Court definitively held, ‘[T]here is no rule of automatic reversal or “inherent” prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)...[¶] Instructional error in a civil case is prejudicial “where it seems probable” that the error “prejudicially affected the verdict.” [Citations.]’ (Soule, at p. 580.)” (Ted Jacob Engineering Group, Inc. v. The Ratcliff Architects, supra, 187 Cal.App.4th at p. 961.)

B. Federally Based Limitations on What Constitutes a Disclosure Protected Under the California Statutes Incorporated into Special Jury Instructions Nos. 2 and 3

In explaining its decision to include the federally based limitations in its special instructions Nos. 2 and 3, the court acknowledged the absence of CACI jury instructions on what constitutes “disclosing information” (Lab. Code, § 1102.5, subd. (b)) or a “protected disclosure” (Ed. Code, § 87162, subd. (e)) and the dearth of California law on the subject. The court recognized it was not bound by federal decisions interpreting the federal “whistleblower” statutes, but found it “not inappropriate ... to consider them on similar subject matter, particularly where a California statute is based on a [fjederal statute.” The court concluded that the Education Code statute was modeled on the federal whistleblower protection act (WPA) (Whistleblower Protection Act of 1989, Pub.L. No. 101-12 (Apr. 10, 1989) 103 Stat. 16). Acknowledging the “linkage as to the Labor Code provision is not so obvious,” the court, nevertheless, found no indication that the California Legislature intended the terms “disclosing information” (Lab. Code, § 1102.5, subd. (b)) and “protected disclosure” (Ed. Code, § 87162, subd. (e)) to have different meanings in those statutes. Finally, the court observed that “it would be a disservice to the jury not to tell them, based on well reasoned and . . . pertinent [fjederal authority” what does not constitute “disclosing information” or “protected disclosure.” “In my view, to do otherwise would be a disservice to the jury, and would not be in keeping with the mandate of Rule of Court 2.1050 [subdivision (e).”

As the court recognized, California Rules of Court, rule 2.1050(e) provides in relevant part: “[w]henever the latest edition of the Judicial Council jury instructions does not contain an instruction on a subject on which the trial judge determines that the jury should be instructed, or when a Judicial Council instruction cannot be modified to submit the issue properly, the instruction given on that subject should be accurate, brief, understandable, impartial, and free from argument.”

As a general proposition, we conclude the court could properly craft instructions in conformity with law developed in federal cases interpreting the federal whistleblower statute. As the court acknowledged, it was not bound by such federal interpretations. Nevertheless, the court could properly conclude that the jury required guidance as to what did and did not constitute “disclosing information” or a “protected disclosure” under the California statutes.

The legislative history of the Education Code sections at issue leaves no doubt that they were intended to extend “whistleblower” protections of the California Whistleblower Protection Act (Gov. Code, § 8547 et seq.; California WPA) that apply to state employees, to public school and community college employees. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 2472 (1999-2000 Reg. Sess.) as amended May 26, 2000, pp. 3, 7.) The California WPA, in turn, was “intended to align state ‘whistleblower’ statutes with those in existing federal law.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business of Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended Aug. 30, 1999, p. 4.) Contrary to plaintiff’s suggestion that the “entire foundation” for the district’s argument that the California WPA was based on the federal WPA was “one remark in a 1999 Senate Rules Committee analysis of a proposed amendment to the C[alifomia] WPA,” virtually every analysis of that bill (Sen. Bill No. 951) stated that the “sponsor contends that this bill is intended to align state ‘whistleblower’ statutes with those in existing federal law.” (Sen. 3d reading analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended Aug. 30, 1999, p. 2; Assem. Com. on Public Employees, Retirement and Social Security, Analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended May 26, 1999, p. 2; see Assem. Com. on Appropriations, Analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) as amended July 15, 1999, p. 2; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) Apr. 28, 1999, p. 3; Sen. Com. on Public Employment and Retirement, Analysis of Sen. Bill No. 951 (1999-2000 Reg. Sess.) Apr. 12, 1999, p. 3.) In fact, the April 12, 1999 analysis of the Senate Committee on Public Employment and Retirement states the subject matter/title of Senate Bill No. 951 as: “STATE EMPLOYEES: ‘WHISTLEBLOWER’ PROTECTION ENHANCEMENTS: ALIGNMENT WITH FEDERAL ‘WHISTLEBLOWER’ STATUTES.” (Italics added, underscoring omitted.)

Moreover, nothing in the legislative history of the pertinent statutes or the case authorities indicates that the terms “disclosing information” and “a disclosure of information” in Labor Code section 1102.5 and “protected disclosure” in Education Code section 87162 were intended to have significantly different meanings. No particular definition of “disclosing information” or “disclosure of information” is provided in Labor Code section 1102.5. However, pursuant to subdivision (b) of that statute, the disclosure protected under section 1102.5 is one that is made “to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (Lab. Code, § 1102.5, subd. (b).) Education Code section 87162 defines “ ‘[protected disclosure’ ” as “a good faith communication that discloses or demonstrates an intention to disclose information that may evidence either of the following: [¶] (1) An improper governmental activity. [¶] (2) 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.” (Ed. Code, § 87162, subd. (e).)

Although the language of the federal WPA describing the conduct protected under that act (5 U.S.C. § 2302(b)(8)(A)) and conferring an individual right of action on the employee (5 U.S.C. § 1221(e)), is not the same as used in the California statutes, the language and purpose of the statutes are sufficiently close to permit the court to use federal authorities as a guide to interpretation of these California whistleblower protection statutes.

Further, the California Supreme Court has noted in interpreting provisions of the California WPA that although the Legislature did not adopt language identical to that of the federal WPA, “it did create a somewhat similar structure.” (Runyon v. Board of Trustees of California State University (2010) 48 Cal.4th 760, 772, fn. 7 [108 Cal.Rptr.3d 557, 229 P.3d 985] [interpreting Gov. Code, § 8547.12].)

We conclude the trial court could properly include in its jury instructions language further defining (and limiting) the disclosures protected under California law as “whistleblowing” in accord with federal cases interpreting the parallel federal WPA. We turn to the question whether the hmiting instructions given by the court provided accurate statements of the law.

C. The Five Instructional Limitations on What Constitutes a Disclosure Protected Under the California Statutes

The five federally based limitations provided by the court in its special instructions Nos. 2 and 3 and challenged here stated: (1) Plaintiff must prove that any disclosure was made in good faith and for the public good and not for personal reasons. (2) Debatable differences of opinion concerning policy matters are not protected disclosures. (3) Information passed along to a supervisor in the normal course of duties is not a protected disclosure. (4) Reporting publicly known facts is not a protected disclosure. (5) Efforts to determine if a practice violates the law are not protected disclosures.

(1) Plaintiff Must Prove That Any Disclosure Was Made in Good Faith and for the Public Good and Not for Personal Reasons

This sentence of the special instructions misstated the applicable law. As explained in a leading California employment law treatise: “[A] whistle-blower’s motivation is irrelevant to the consideration of whether his or her activity is protected. Whistleblowing may be prompted by an employee’s dissatisfaction, resentment over unfair treatment, vindictiveness, or litigiousness as well as by honest efforts to ensure that the employer is following the law. As long as the employee can voice a reasonable suspicion that a violation of a constitutional, statutory, or regulatory provision has occurred, the employee’s report to a government agency may be sufficient to create liability for the employer for retaliation.” (2 Advising Cal. Employers and Employees (Cont.Ed.Bar 2011 supp.) Whistleblower Issues, § 16.7, p. 1677.)

The district relied upon two cases it contended supported the limitation: Garcetti v. Ceballos (2006) 547 U.S. 410 [164 L.Ed.2d 689, 126 S.Ct. 1951] and Fiorillo v. U.S. Dept. of Justice, Bureau of Prisons (Fed.Cir. 1986) 795 F.2d 1544 (Fiorillo), overruled by statute as stated in Horton v. Department of the Navy (Fed.Cir. 1995) 66 F.3d 279, 282-283 (Horton). The first does not contain the limitation. The second has been expressly overruled by Congress, and criticized as misinterpreting the federal statute.

In Garcetti v. Ceballos, supra, 547 U.S. 410, the Supreme Court held that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (Garcetti, at p. 425.) The Supreme Court did not limit the reach of whistleblower statutes to statements made in good faith and for the public good. Indeed, the references made by the court to the California statutes indicate an understanding that such statutes—rather than the First Amendment—could shield whistleblowers from retaliation. “Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick [v. Myers (1983) 461 U.S. 138 [75 L.Ed.2d 708, 103 S.Ct. 1684]], public employers should, ‘as a matter of good judgment,’ be ‘receptive to constructive criticism offered by their employees.’ 461 U.S., at 149 [103 S.Ct. 1684]. The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing. See, e. g., 5 U. S. C. § 2302(b)(8); Cal. Govt. Code Ann. § 8547.8 (West 2005); Cal. Lab. Code Ann. § 1102.5 (West Supp. 2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. [Citations.] These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. [][] We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” (Garcetti, at pp. 425-426.)

In Fiorillo, supra, 795 F.2d 1544, the Federal Circuit “held that in order to be protected under the Whistleblower Protection Act the employee’s primary motivation for making the disclosure must be a desire to inform the public, and not for vindictiveness or personal advantage.” (Horton, supra, 66 F.3d at p. 282.) The Federal Circuit in Horton pointed out that “Fiorillo was overruled by Congressional action in 1988. The legislative history of that enactment explains: ‘In Fiorillo[, supra, 795 F.2d at p. 1550], an employee’s disclosures were not considered protected [under the federal WPA] because the employee’s “primary motivation” was not for the public good, but rather for the personal motives of the employee. The court reached this conclusion despite the lack of any indication in [the Civil Service Reform Act] that an employee’s motives are supposed to be considered in determining whether a disclosure is protected. [¶] The Committee intends that disclosures be encouraged. The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.’ S.Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988).” (Horton, at pp. 282-283, italics added, quoting a 1988 Rep. of the Sen. Com. on Governmental Affairs.) In Huffman v. Office of Personnel Management (Fed.Cir. 2001) 263 F.3d 1341 (Huffman), the court discussed the legislative history of the 1994 change in the federal WPA (5 U.S.C. § 2302(b)(8)(A)) and acknowledged that the term “ ‘any disclosure’—was deliberately broad,” whereas the predecessor version of the statute “reciting that it was only a prohibited personnel action to take or fail to take a personnel action because of ‘a disclosure of information by an employee.’ [Citation.]” (Huffman, supra, 263 F.3d at p. 1347.) The change in language in the federal WPA was directed toward countering the narrow approach taken by the Federal Circuit and the Merit Systems Protection Board (MSPB). The legislative history of that statute emphasized the intent of Congress that the statute was to be read broadly. The change of term from “a disclosure” to “any disclosure” in the statutory definition was “ ‘simply to stress that any disclosure is protected (if it meets the requisite reasonable belief test and is not required to be kept confidential).’ [Citation.]” (Huffman, at p. 1348.)

Seizing on this distinction, the district contends that Fiorillo applies to Education Code section 87163, because “[t]hat language addressed in Fiorillo, mirrors that currently contained in Education Code section 87163.” This is too slim a reed upon which to hang such a justification. First, neither Education Code section 87162 nor Education Code section 87163 refers to “a disclosure.” Second, neither the Fiorillo majority nor the dissent ever mentioned or relied upon the word “a” in contrast to the word “any” preceding the word “disclosure” in their competing analyses of the federal statute. Most importantly, as discussed above, the legislative history evinces Congress’s fundamental disagreement with the Fiorillo court’s “primary motivation” limitation of the federal statute. The legislative history of the federal statute discloses that Congress always intended that the term “a disclosure” should be read broadly. In the face of contrary administrative and court determinations, Congress changed the term “a” to “any” to emphasize the point. (Huffman, supra, 263 F.3d at p. 1348.)

Moreover, it may often be the case that a personal agenda or animus towards a supervisor or other employees will be one of several considerations motivating the employee whistleblower to make a disclosure regarding conduct that the employee also reasonably believes violates a statute or rule or constitutes misconduct. That motivation is irrelevant to the purposes of the disclosure statutes. It easily could lead the finder of fact to detour around the central question of the employee’s reasonable belief and down a circuitous byway in an attempt to discern the employee’s motives by delving into the employee’s relationships with coworkers, supervisors and the employer.

Nothing in Labor Code section 1102.5 and Education Code section 87160 et seq. persuade us that such a limitation was intended to be a part of these California statutes. (See also Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384-1386 [37 Cal.Rptr.3d 113] (Patten) [differentiating under Lab. Code, § 1102.5, subd. (b), disclosures encompassing only internal personnel matters from disclosures where employee had reasonable cause to believe the information disclosed a violation of a state or federal statute].) Hence, it is not the motive of the asserted whistleblower, but the nature of the communication that determines whether it is covered.

(2) Debatable Differences of Opinion Concerning Policy Matters Are Not Protected Disclosures

Plaintiff contends the court erred in instructing the jury that “[debatable differences of opinion concerning policy matters” were not disclosures of information under Labor Code section 1102.5, subdivision (b) and were not “protected disclosures” under Education Code section 87160 et seq. We agree. The court erred in failing to distinguish between the disclosure of policies that plaintiff believed to be unwise, wasteful, gross misconduct or the like, which are subject to the limitation, and the disclosure of policies that plaintiff reasonably believed violated federal or state statutes, rules, or regulations, which are not subject to this limitation, even if these policies were also claimed to be unwise, wasteful or to constitute gross misconduct.

This debatable policy matters limitation on what constitutes a disclosure protected by the law is found in federal cases interpreting the scope of a protected disclosure under 5 United States Code section 2302(b)(8), part of the federal WPA, such as White v. Department of the Air Force (Fed.Cir. 2004) 391 F.3d 1377 (White). White had leveled criticism of an Air Force education program, “arguing that the standards were being imposed too rigidly, were academically unsound, and were impossible to meet or, at least, too burdensome.” (Id. at p. 1379.) The Air Force lost confidence in White’s ability to support the program and reassigned him. White filed an individual right of action alleging retaliation for protected whistleblowing in contravention of the federal WPA. The federal appellate court upheld the determination of the MSPB that “White had ‘disclosed a debatable management decision regarding a policy matter,’ and, as such, he did not have a reasonable belief that he disclosed gross mismanagement” under the federal statute. (391 F.3d at pp. 1380, 1383.) There was no claim on appeal that White had disclosed a violation of law. (Id. at p. 1381, fn. 1.) The Federal Circuit held that “where a dispute is in the nature of a policy dispute, ‘gross mismanagement’ requires that a claimed agency error in the adoption of, or continued adherence to, a policy be a matter that is not debatable among reasonable people.” (Id. at p. 1383.) In reaching this determination, the court rejected the employer-agency’s claim that criticism of agency policy can never be protected under the federal WPA, so long as that policy is not unlawful or a gross waste of funds. (391 F.3d at pp. 1381-1382.) Instead, the court acknowledged that “[m]ere differences of opinion between an employee and his agency superiors as to the proper approach to a particular problem or the most appropriate course of action do not rise to the level of gross mismanagement. . . .” (Id. at p. 1381.) Furthermore, “debatable differences of opinion concerning policy matters are not protected disclosures. Rather, for a lawful agency policy to constitute ‘gross mismanagement,’ an employee must disclose such serious errors by the agency that a conclusion the agency erred is not debatable among reasonable people.” (Id. at p. 1382.) The White court noted that “[t]his non-debatable requirement does not, of course, apply to alleged violations of statutes or regulations. In that circumstance, there may be a reasonable belief that a violation has occurred, even though the existence of an actual violation may be debatable.” (Id. at fn. 2, italics added.)

Those portions of special instructions Nos. 2 and 3 stating that “[debatable differences of opinion concerning policy matters” are not protected disclosures, improperly conflated disclosures based on the belief that a policy was unwise, “economically wasteful or involves gross misconduct, incompetency, or inefficiency” (Ed. Code, § 87162, subd. (c)(2)), with disclosures founded upon a reasonable belief that a policy was unlawful. (See Ed. Code, § 87162, subd. (c)(1); Lab. Code, § 1102.5, subd. (b).) Disclosures related to the wisdom or efficacy of a policy are subject to the debatable policy matters limitation, where there is no claim that the disclosure was made because the employee reasonably believed the policy violated a statute, rule or regulation. Disclosures of a policy that the employee reasonably believes violates a statute or regulation are protected disclosures, whether or not the existence of an actual violation or the wisdom of the policy are debatable. Application of the debatable policy matters limitation broadly, to cases where the alleged whistleblower reasonably believes a policy violates the law, would eviscerate the reasonable belief standard in many, if not most, of such cases.

The confusion occurs because a policy may be challenged both as unwise, wasteful, gross misconduct, and the like and because the purported whistleblower reasonably believes the policy violates a statute or regulation. In such cases, it is error to give the debatable policy matters instruction without carefully explaining that the limitation does not apply to challenges where the issue is whether the plaintiff reasonably believed the policy violated a statute or regulation.

Plaintiff here alleged the district retaliated against her in violation of Education Code section 87160 et seq. Those allegations incorporated allegations of retaliation for protected disclosures of gross misconduct by the district. In special jury instruction No. 3, the court properly instructed the jury in conformity with Education Code section 87162 that a “ ‘protected disclosure’ means a good faith communication that discloses or demonstrates an intention to disclose information that may evidence an improper governmental activity.” (See Ed. Code, § 87162, subd. (e)(1).) It also accurately defined “improper governmental activity” as including activity that “violates a state or federal law or regulation,” and also activity that is “economically wasteful or involves gross misconduct, incompetency, or inefficiency.” (Ed. Code, § 87162, subd. (c)(1) & (2).) As plaintiff had raised the issue of “improper governmental activity,” it was within the court’s discretion to instruct the jury in accordance with White with regard to plaintiff’s claims implicating gross misconduct under Education Code section 87162, subdivision (c)(2).

However, the court erred in instructing the jury that debatable differences of opinion concerning policy matters are not “disclosures of information” in connection with plaintiff’s Labor Code section 1102.5, subdivision (b) allegations or “protected disclosures,” under Education Code section 87160 et seq., where plaintiff’s disclosures allegedly were based on her reasonable belief the policies in question violated statutes or regulations. (Special jury instns. Nos. 2 and 3.) As White noted, the “non-debatable requirement does not . . . apply to alleged violations of statutes or regulations. In that circumstance, there may be a reasonable belief that a violation has occurred, even though the existence of an actual violation may be debatable.” (White, supra, 391 F.3d. at p. 1382, fn. 2; accord, Chambers v. Department of the Interior, supra, 515 F.3d 1362.) The trial court here correctly instructed the jury that plaintiff must prove that she “disclosed information to a government or law enforcement agency where she had reasonable cause to believe that the information disclosed a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.” (See Lab. Code, § 1102.5, subd. (b).) It correctly instructed the jury that for it to find a violation of Education Code section 87160 et seq., plaintiff must prove she made a “protected disclosure” in which she “disclosed or demonstrated an intention to disclose ‘improper governmental activities.’ ” However, the debatable policy matters limitation of special jury instructions Nos. 2 and 3 failed to distinguish disclosures regarding a purported violation of state or federal statutes, rales, or regulations, which require only that a plaintiff have a reasonable belief that a violation has occurred, from disclosures of policies that the plaintiff believes are economically wasteful or involve gross misconduct, incompetency, or inefficiency, as to which the debatable policy limitation applies.

The whistleblower provisions of the Labor Code and the Education Code with respect to disclosures of activities (including policies) that the employee has reasonable cause to believe violate state or federal statutes, rales or regulations, do not lend themselves to the debatable differences of opinion concerning policy matters standard articulated in White for evaluating claimed disclosures of waste, gross mismanagement, and the like. As White acknowledged, there will be circumstances in which a disclosure involves debatable differences of opinion concerning policy matters where the plaintiff has a reasonable belief that the policy violates a statute, rales or regulations. (White, supra, 391 F.3d at p. 1382, fn. 2.) Where this is the case, we read the federal cases as holding the debatable policy limitation inapplicable.

The trial court erred in instructing the jury without qualification that debatable differences of opinion concerning policy matters were not “disclosures of information” under Labor Code section 1102.5 or “protected disclosures” under Education Code section 87160 et seq.

(3) Information Passed Along to a Supervisor in the Normal Course of Duties Is Not a Protected Disclosure.

This instruction was erroneous under both federal law and established California law. The instruction appears based on federal cases such as Huffman, supra, 263 F.3d 1341, 1352, in which the Federal Circuit stated that a public employee who, as a part of his normal job duties, reports employee wrongdoing through normal channels is not protected by the federal WPA. (Huffman, at pp. 1351-1352; see also Willis v. Department of Agriculture (Fed.Cir. 1998) 141 F.3d 1139, 1143.) The Huffman court reached this conclusion after reviewing the legislative history of the federal WPA, which indicated that the federal statute was enacted to “protect employees who go above and beyond the call of duty and report infractions in the law that are hidden.” (Huffman, at p. 1353, fn. omitted.) With respect to the “normal duties” limitation, the Huffman court distinguished “three quite different situations.” (Id. at p. 1352.) First, where the employee has, as part of his or her normal duties, been assigned the task of investigating and reporting wrongdoing by government employees and reports that wrongdoing through normal channels, such reporting is not a protected disclosure covered by the federal WPA. (Huffman, at p. 1352.) Second, where “an employee with such assigned investigatory responsibilities reports the wrongdoing outside of normal channels” (id. at p. 1354, italics added), for instance where the normal chain of command is unresponsive, the disclosure is protected. Third, a report may be a protected disclosure where the employee is obligated to report the wrongdoing, but such report is not part of the employee’s normal duties or the employee has not been assigned those duties. (Ibid.) The Huffman court remanded the matter to the MSPB to allow it to consider whether certain reports concerning the conduct of other employees fell into the first, second, or third category. (Id. at p. 1355.)

In contrast, Labor Code section 1102.5 subdivision (e) expressly provides that “[a] report made by an employee of a government agency to his or her employer is a disclosure of information to a government or law enforcement agency . . .” subject to the statute’s protections. This amendment became effective on January 1, 2004. (Stats. 2003, ch. 484, § 2, p. 3518.) However, even the former version of section 1102.5 has been consistently interpreted to protect a public employee who reports legal violations to his or her own employer rather than to a separate public agency, where the employer or supervisor is not the suspected wrongdoer. (Colores v. Board of Trustees (2003) 105 Cal.App.4th 1293, 1308, 1312-1313 [130 Cal.Rptr.2d 347] (Colores) [state employee who uncovered the unauthorized use of state assets and reported her findings to a supervisor who had investigative authority over the assets qualified as a whistleblower under § 1102.5, subd. (b)]; Gardenhire v. Housing Authority (2000) 85 Cal.App.4th 236, 241-243 [101 Cal.Rptr.2d 893] [employee of L.A. City Housing Authority prevailed on whistleblower claim where she had informed housing authority commissioners of consulting contractor’s improprieties].) In Colores, the Court of Appeal rejected the argument of the university employer that the plaintiff could not be deemed a whistleblower since she “merely did her job when she reported wrongdoing to [her supervisor] Avery” and it was Avery, not the plaintiff, who reported the embezzlement to legal authorities. (Colores, at p. 1312.) According to Colores, “The university applies the concept of whistleblowing too narrowly. It is true that plaintiff was simply doing her job when she uncovered the unauthorized use of state assets by [persons associated] with facilities operations. It is also true that she reported her findings to Avery rather than to some other governmental agency. This, however, will not defeat her right to whistleblower status. First, plaintiff was employed by a governmental agency and she had every reason to expect that Avery would not sweep the information under the rug but rather would conduct an investigation into the matter, as Avery did. Thus, plaintiff, in contrast to an employee of a private employer, had no need to inform some other governmental agency in order to qualify as a ‘whistleblower’ within the meaning of Labor Code section 1102.5, subdivision (b). (Compare with Green v. Ralee Engineering Co. [(1998)] 19 Cal.4th [66,] 72-73, 76-77 [78 Cal.Rptr.2d 16, 960 P.2d 1046][])” (Colores, at pp. 1312-1313, italics added; see also Patten, supra, 134 Cal.App.4th at pp. 1385-1386 [confirming that under Lab. Code, § 1102.5, a state employee who was “ ‘simply doing her job’ ” when she uncovered illegal program expenditures and disclosed them to her employer and to legislative personnel, raised a triable issue of fact as to whether the disclosures constituted protected whistleblowing].)

The district terms Colores, supra, 105 Cal.App.4th 1293, “inapposite,” arguing that it was not a Labor Code section 1102.5, subdivision (b) claim, but was a public policy termination and that Colores did not address the matter under the strictures of section 1102.5, but under general public policy principles. We are not persuaded. As demonstrated by the excerpt quoted above, the Colores opinion rests upon its analysis of the “whistleblower” protections of Labor Code section 1102.5, subdivision (b). That reasoning was followed in Patten, supra, 134 Cal.App.4th at pages 1385-1386. Furthermore, any doubt on this point would have been remedied by the addition of Labor Code section 1102.5, subdivision (e) to expressly so provide.

The court erred in instructing the jury that information passed along to a supervisor in the normal course of duties was not a protected disclosure under California law. In circumstances where the supervisor is not the alleged wrongdoer (i.e., the supervisor’s own conduct is not the asserted wrongdoing that is being disclosed to that supervisor), it cannot categorically be stated that a report to a supervisor in the normal course of duties is not a protected disclosure.

(4) Reporting Publicly Known Facts Is Not a Protected Disclosure.

We are persuaded that this was a proper limitation on what constitutes disclosure protected by California law. We agree with Huffman, supra, 263 F.3d 1341, 1349-1350, and other federal cases that have held that the report of information that was already known did not constitute a protected disclosure. (See, e.g., Meuwissen v. Department of Interior (Fed.Cir. 2000) 234 F.3d 9, 12-13 [report of publicly known information that constituted a decision in the course of adjudication was not the kind of disclosure the federal WPA was intended to protect]; Francisco v. Office of Personnel Management (Fed.Cir. 2002) 295 F.3d 1310, 1314 [report of information already publicly known did not constitute a protected disclosure].) We also read the term “disclosure” consistent with its “ordinarily understood meaning.” (Huffman, at p. 1349.) “[T]he term ‘disclosure’ means to reveal something that was hidden and not known.” (Id. at pp. 1349-1350; see Webster’s 3d New Internat. Dict. (1968) p. 645.) Both Labor Code section 1102.5 and Education Code section 87162, subdivision (e), use variants of the term “disclose” (i.e., “disclosing” and “discloses” in Lab. Code, § 1102.5, subd. (b), and “[p]rotected disclosure” in Ed. Code, § 87162, subd. (e)) and there is no reason to believe the terms were being used in anything other than their ordinary sense.

This conclusion is consistent with those cases holding that the employee’s report to the employee’s supervisor about the supervisor’s own wrongdoing is not a “disclosure” and is not protected whistleblowing activity, because the employer already knows about his or her wrongdoing (Huffman, supra, 263 F.3d at pp. 1349-1350; see, e.g., Reid v. Merit Systems Protection Bd. (Fed.Cir. 2007) 508 F.3d 674, 678 (Reid); Horton, supra, 66 F.3d at p. 282.) Moreover, criticism delivered directly to the wrongdoers does not further the purpose of either the federal WPA or the California whistleblower laws to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it. (Huffman, supra, 263 F.3d at pp. 1349-1351; Horton, at p. 282; see Colores, supra, 105 Cal.App.4th at pp. 1312-1313.) In California cases holding that a public employee’s report of wrongdoing to his or her own employer is not excluded from qualifying as a disclosure protected under the Labor Code, the superior to whom the report is made is not the person involved in the alleged wrongdoing. (See Colores, supra, 105 Cal.App.4th at pp. 1312-1313; Patten, supra, 134 Cal.App.4th at p. 1386.)

The court did not err in instructing that reporting publicly known facts is not a disclosure protected by the California whistleblower statutes at issue here.

(5) Efforts to Determine if a Practice Violates the Law Are Not Protected Disclosures.

This appears to us to be a correct statement of the law, extrapolated from Reid, supra, 508 F.3d 674. There, the Federal Circuit held that a government employee’s alerting an innocent supervisor of an accused wrongdoer to a potential violation might qualify as a protected disclosure where the violation had not yet occurred, but was imminent. (Id. at p. 678.) In so holding, the Reid court opined: “In holding that a disclosure of an impending action can qualify under the [federal] WPA, we do not intend to convey the idea that any mere thought, suggestion, or discussion of an action that someone might consider to be a violation of a law, rule, or regulation is a justification for a whistleblower complaint. Discussion among employees and supervisors concerning various possible courses of action is healthy and normal in any organization. It may in fact avoid a violation. When such discussion proceeds to an instruction to violate the law must depend on the facts of a given case. But a holding that an instruction to carry out an act can never qualify under the WPA if the act never occurred is too bright a line. The determination depends on the facts.” (Ibid., italics added.) The instruction given by the court here appears consistent with Reid and it makes sense in the context of attempting to avoid violations.

D. “Intentional” Retaliation Instruction of Special Jury Instruction No. 3, Paragraph 6

Plaintiff contends the instruction erroneously required the jury to find the district intended to retaliate against her. Over plaintiff’s objection, the court instructed the jury that to find a violation of the Education Code, it must find “[t]hat Defendants Marin Community College District and Board of Trustees of Marin Community College District took actions described in Paragraph 2, above, [removing plaintiff from the position of dean of enrollment services; placing plaintiff on administrative leave; or engaging in conduct that, taken as a whole, materially and adversely affected the terms and conditions of plaintiff’s employment] with the intention of retaliating against Plaintiff.” (Italics added.) The court based this instruction on Education Code section 87164, subdivisions (b) and (h).

Plaintiff argues that Education Code section 87164, subdivision (h) does not have any application to the essential elements of her proof, but simply establishes an employee’s right to bring a civil damages action, as well as describing other available damages and remedies. Subdivision (h) provides in relevant part: “In addition to all other penalties provided by law, a person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment with a public school employer for having made a protected disclosure shall be liable in an action for damages brought against him or her by the injured party. . . .” (Ed. Code, § 87164, subd. (h), italics added.) Plaintiff further contends that the challenged instruction increased her burden of proof beyond that required by subdivision (j) of section 87164. Education Code section 87164, subdivision (j) states that, “once it has been demonstrated by a preponderance of evidence that an activity protected by this article was a contributing factor in the alleged retaliation ... the burden of proof shall be on the . . . employer to demonstrate by clear and convincing evidence that the alleged action •would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. . . .” (Ed. Code, § 87164, subd. (j).) The jury was so instructed.

Plaintiff ignores subdivision (b) of Education Code section 87164, providing in relevant part: “A person who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against an employee or applicant for employment with a public school employer for having made a protected disclosure is subject to a fine not to exceed ten thousand dollars ($10,000) and imprisonment in the county jail for a period not to exceed one year. An employee, officer, or administrator who intentionally engages in that conduct shall ¿so be subject to discipline by the public school employer. . . .” (Italics added.)

Education Code section 87164, subdivisions (b) and (h) expressly require that the person engaging in retaliation do so “intentionally.” Nothing in that requirement undermines the burdens of proof set forth in section 87164, subdivision (j) and plaintiff does not demonstrate how the burdens of proof are undermined by this requirement. Once an employee has demonstrated by a preponderance of evidence that an activity protected by the statute was a contributing factor in the alleged intentional retaliation, the burden of proof shifts to the employer to demonstrate by clear and convincing evidence that action alleged to be retaliatory would have occurred for legitimate, independent reasons.

The court did not err in giving this instruction.

E. Limiting Instruction Based on Education Code Section 87164, Subdivision (i)

Plaintiff contends the court erred in instructing the jury as follows: “If said Defendants reasonably believed that they were justified in removing Plaintiff from her position of Dean of Enrollment Services and/or placing Plaintiff on administrative leave on the basis of evidence separate and apart from the fact that Plaintiff made a ‘protected disclosure’ as that term is defined in these instructions, then said Defendants are not liable to Plaintiff under the provisions of Education Code § 87160 et seq.”

This instruction was based upon Education Code section 87164, subdivision (i), which provides: “This section is not intended to prevent a public school employer, school administrator, or supervisor from taking, failing to take, directing others to take, recommending, or approving a personnel action with respect to an employee or applicant for employment with a public school employer if the public school employer, school administrator, or supervisor reasonably believes an action or inaction is justified on the basis of evidence separate and apart from the fact that the person has made a protected disclosure as defined in subdivision (e) of Section 87162.”

Plaintiff maintains that the instruction fashioned by the court creates an affirmative defense that allowed the district to evade its burden under Education Code section 87164, subdivision (j) to demonstrate by clear and convincing evidence that the actions taken against her would have occurred for “legitimate, independent reasons,” had she not made protected disclosures. She admits that under her interpretation, the provisions of section 87164, subdivision (i) cannot be reconciled with the higher degree of proof required by subdivision (j). As we do not adopt plaintiff’s premise, we see no conflict. Once plaintiff has shown by a “preponderance of evidence” that a protected disclosure or activity “was a contributing factor in the alleged retaliation,” the burden shifts to the district to show by “clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in protected disclosures or refused an illegal order. . . .” (Ed. Code, § 87164, subd. (j).) One way for the district to do so is to demonstrate by clear and convincing evidence that thos