BILL ANALYSIS
SB 1342
Page 1
Date of Hearing: June 15, 2004
Chief Counsel: Bruce E. Chan
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mark Leno, Chair
SB 1342 (Speier) - As Amended: June 9, 2004
As Proposed to be Amended in Committee
SUMMARY : Fixes the term of the Inspector General (IG) at six
years and establishes basic requirements and protocols for the
investigations. Specifically, this bill :
1)Provides that the IG shall be appointed to a six-year term,
subject to Senate confirmation. The IG may not be removed
from office during that term, except for good cause.
2)Revises certain provisions relating to what materials are
deemed confidential in connection with investigations by the
IG. Provides that all identifying information, and any
personal papers or correspondence from any person who
initiated the investigation, shall not be disclosed, except in
those cases where the IG determines that disclosure of the
information is necessary in the interests of justice.
3)Deletes provisions regarding investigations of specified
employees and revises provisions regarding the communication
to the IG of information that may describe a variance from
various departmental investigatory policies and procedures to
apply instead to improper governmental activity, as defined.
4)Revises procedures relating to the investigation of complaints
of retaliation by certain employees. Expands the definition
of "retaliation" to include retaliation for refusing to obey
an illegal order or directive. Provides that the IG may also
refer the matter for investigation by the appropriate
employing agency, subject to investigative oversight by the
IG. If an employing entity declines to investigate the
complaint, the entity shall, within 30 days of receipt of the
referral by the IG, notify the IG of its decision. The IG may
thereafter conduct, or decline to conduct, his or her own
investigation into the complaint. If after reviewing the
complaint the IG determines there is no cause of action, the
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IG shall notify the complainant and the State Personnel Board
(SPB).
5)Provides a procedure for coordinating investigations by the
SPB, the IG, and the appropriate employing entity, as
specified. An employee may not be required to first file a
retaliation complaint with the IG before filing a complaint
with the SPB.
6)Provides that disciplinary action regarding acts of
retaliation shall require, at a minimum, a suspension for not
less that 30 days without pay, except in a case in which the
employing entity determines that a lesser penalty is
warranted, as specified.
7)Provides that specified state agencies shall immediately
inform the IG of all matters involving criminal conduct and
shall refer those matters to the district attorney in the
appropriate jurisdiction and the Attorney General for further
action, as specified. Except as to the receiving authorities,
the employing entity shall neither disclose official
information gathered during the investigative process which is
deemed confidential or privileged nor enter such information
in the officer's personnel file.
8)Requires that upon completion of any audit, the IG shall
disclose a written report to specified entities and post the
reports on the IG's Web site within 30 days.
EXISTING LAW :
1)Creates the independent Office of the Inspector General (OIG),
which shall be responsible for reviewing departmental policy
and procedures for conducting audits of investigatory
practices and other audits and investigations of the
California Department of Corrections (CDC), the Department of
the Youth Authority, the Board of Prison Terms, the Youthful
Offender Parole Board, the Board of Corrections, the Narcotic
Addict Evaluation Authority, the Prison Industry Authority,
and the Youth and Adult Correctional Agency, as requested by
either the secretary of the Youth and Adult Correctional
Agency, a member of the Legislature, or at the initiative of
the IG, under policies developed by the IG. (Penal Code
Sections 6125 - 6129.)
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2)Provides that the Governor shall appoint the IG, subject to
Senate confirmation of that appointment. (Penal Code Section
6125.)
3)Requires the IG, upon completion of an investigation or audit,
to provide a response to the requester. (Penal Code Section
6126.)
4)Requires the IG to conduct a management review audit of any
warden in the CDC or superintendent in the Department of the
Youth Authority who has held his or her position for more than
four years and/or following the confirmation of a new warden
or the appointment of a new superintendent unless the IG
determines that the audit is not warranted at that time.
(Penal Code Section 6051.)
5)Specifies that the management review audits shall be submitted
to the secretary of the agency and the respective director for
evaluation and for any response deemed necessary, provides
that any member of the Legislature may request and shall be
provided with a copy of any audit report, and specifies that a
report that involves potential criminal investigations or
prosecution shall be considered confidential. (Penal Code
Section 6051.)
6)Specifies that all books, papers, records, and correspondence
of the OIG pertaining to its work are public records subject
to Chapter 3.5 (commencing with Section 6250) of Division 7 of
Title 1 of the Government Code except the following items:
(a) personal papers and correspondence of any person receiving
assistance from the IG when that person requested in writing
that his or her papers and correspondence be kept private and
confidential; (b) papers, correspondence, memoranda, or any
information pertaining to any audit or investigation not
completed; and, (c) papers, correspondence, or memoranda
pertaining to any audit or investigation that has been
completed if the papers, correspondence, or memoranda are not
used in support of any report resulting from the audit or
investigation. (Penal Code Section 6126.3.)
7)Provides that it is a misdemeanor for the IG or any employee
or former employee of the IG to divulge or make known in any
manner not expressly permitted by law to any person not
employed by the IG any particulars of any record, document, or
information the disclosure of which is restricted by law from
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release to the public. (Penal Code Sections 6126.4 and
6126.6.)
8)Requires that upon the completion of any investigation, the IG
shall prepare a written report, which shall be held as
confidential and disclosed in confidence, only to the
Secretary of the Youth and Adult Correctional Agency, the
Governor, and the appropriate director or law enforcement
agency; a summary of the report's findings and conclusions
shall be made available, upon request, to the person who
requested the investigation, the person or persons who were
the subjects of the investigation, and to any member of the
Legislature. However, nothing shall preclude, as specified,
the OIG from following all applicable laws regarding
confidentiality including, but not limited to, the California
Public Records Act, the Public Safety Officers Procedural Bill
of Rights, the Information Practices Act of 1977, the
Confidentiality of Medical Information Act, and the provisions
of Penal Code Section 832.7 relating to the disposition
notification for complaints against peace officers. [Penal
Code 6129(g) and (h).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Our
correctional facilities require an internal justice system
free from outside influence and inside conflict of interest.
The OIG, as an independent watchdog protective of employees
who report wrongdoing, is the cornerstone element of this
envisioned internal justice system. The IG needs six elements
of support. First: A system staffed by competent, trained
investigators who know the prison work culture and the
dictates of the Police Officers Bill of Rights. I do not want
auditors investigating correctional officers (SB 1400). Two:
A system that is built with structurally sound procedures.
Unwritten procedures just do not work (SB 1342 and SB 1400).
Three: A system that has teeth. When wrongdoing is
documented, discipline will follow. In prior years, the IG's
findings sometimes entered a disciplinary vacuum. The ability
of employees to report wrongdoing must not be chilled by
inaction on the part of management. (SB 1342). Fourth: A
system that is transparent, where findings have not been
shielded or weakened by secrecy. There is a problem with the
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fact that the IG's reports and findings are not subject to
sunshine (SB 1352). Fifth: A system that has adequate
resources to succeed in our new era of reduced funding.
Sixth: A system with a code of conduct that clearly separates
good behavior from bad behavior (SB 1400 and SB 1431). If
these six elements become a reality, we will have a system of
sound internal justice."
2)Background Information - The IG : According to background
information, in the past, the CDC has ignored reports of
employee wrongdoing filed by the IG. In some cases, reports
were filed with the Governor's Office but the reports were
never acted on or made public. The author contends that the
process can be strengthened by making the IG a term
appointment; by requiring the IG to investigate employee
retaliation complaints against CDC management; by requiring
the hiring authority to initiate corrective action when the IG
finds that there is retaliation against employees who report
wrongdoing; and by requiring the IG, with the witnesses'
consent, to file an unredacted report of employee retaliation
with the SPB when the hiring authority declines to take
corrective action. This bill also establishes a guideline for
improving the working relationship between the IG and the SPB,
partly in response to several instances where disciplinary
actions against correctional employees were overturned by the
SPB.
3)Proposed Author's Amendment : The author has indicated that
the term of appointment of the IG shall be six years instead
of the ten years as currently provided for in this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file
Opposition
California Correctional Peace Officers Association
Analysis Prepared by : Bruce Chan / PUB. S. / (916) 319-3744