BILL NUMBER: SB 1342 CHAPTERED 09/24/04 CHAPTER 733 FILED WITH SECRETARY OF STATE SEPTEMBER 24, 2004 APPROVED BY GOVERNOR SEPTEMBER 24, 2004 PASSED THE SENATE AUGUST 26, 2004 PASSED THE ASSEMBLY AUGUST 17, 2004 AMENDED IN ASSEMBLY AUGUST 10, 2004 AMENDED IN ASSEMBLY JULY 15, 2004 AMENDED IN ASSEMBLY JUNE 22, 2004 AMENDED IN ASSEMBLY JUNE 9, 2004 AMENDED IN SENATE MAY 20, 2004 AMENDED IN SENATE MAY 4, 2004 AMENDED IN SENATE APRIL 27, 2004 AMENDED IN SENATE MARCH 26, 2004 INTRODUCED BY Senators Speier and Romero FEBRUARY 18, 2004 An act to amend Sections 6125, 6126, 6128, and 6129 of the Penal Code, relating to the Inspector General. LEGISLATIVE COUNSEL'S DIGEST SB 1342, Speier. Inspector General. Existing law establishes the office of the Inspector General relative to corrections, and generally provides for various duties and authority of the office. This bill would provide that the Inspector General would be appointed to a 6-year term, subject to Senate confirmation, and that the Inspector General could not be removed from office except for good cause. The bill would require the Inspector General to develop a methodology for producing a workload budget, as specified. The bill would revise certain provisions relating to what materials are deemed confidential in connection with investigations by the Inspector General. The bill would delete provisions regarding investigations of employees of the Youthful Offender Parole Board, and revise provisions regarding the communication to the Inspector General of information that may describe a variance from various departmental investigatory policies and procedures to apply, instead, to improper governmental activity, as defined. The bill would also revise procedures relating to the investigation of complaints of retaliation by certain employees, and would provide a procedure for coordinating investigations by the Inspector General and the appropriate employing entity, and complaints filed with the Inspector General and the State Personnel Board by an employee, as specified. The bill would delete provisions authorizing punitive damages for malicious acts by offending parties against state employees. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 6125 of the Penal Code is amended to read: 6125. There is hereby created the independent office of the Inspector General which shall not be a subdivision of any other governmental entity. The Governor shall appoint, subject to confirmation by the Senate, the Inspector General to a six-year term. The Inspector General may not be removed from office during that term, except for good cause. SEC. 2. Section 6126 of the Penal Code is amended to read: 6126. (a) The Inspector General shall be responsible for reviewing departmental policy and procedures for conducting audits of investigatory practices and other audits, as well as conducting investigations of the Department of Corrections, 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 or a Member of the Legislature, pursuant to the approval of the Inspector General under policies to be developed by the Inspector General. The Inspector General may, under policies developed by the Inspector General, initiate an investigation or an audit on his or her own accord. (b) Upon completion of an investigation or audit, the Inspector General shall provide a response to the requester. (c) The Inspector General shall, during the course of an investigatory audit, identify areas of full and partial compliance, or noncompliance, with departmental investigatory policies and procedures, specify deficiencies in the completion and documentation of investigatory processes, and recommend corrective actions, including, but not limited to, additional training with respect to investigative policies, additional policies, or changes in policy, as well as any other findings or recommendations that the Inspector General deems appropriate. (d) The Inspector General shall, in consultation with the Department of Finance, develop a methodology for producing a workload budget to be used for annually adjusting the budget of the office of the Inspector General, beginning with the budget for the 2005-06 fiscal year. SEC. 3. Section 6128 of the Penal Code is amended to read: 6128. (a) The office of the Inspector General may receive communications from any individual, including those employed by any department, board, or authority who believes he or she may have information that may describe an improper governmental activity, as that term is defined in subdivision (b) of Section 8547.2 of the Government Code. It is not the purpose of these communications to redress any single disciplinary action or grievance that may routinely occur. (b) In order to properly respond to any allegation of improper governmental activity, the Inspector General shall establish a toll-free public telephone number for the purpose of identifying any alleged wrongdoing by an employee of the Department of Corrections, the Department of the Youth Authority, the Board of Prison Terms, the Board of Corrections, the Narcotic Addict Evaluation Authority, the Prison Industry Authority, or the Youth and Adult Correctional Agency. This telephone number shall be posted by the above-named departments, and their respective subdivisions, in clear view of all employees and the public. When appropriate, the Inspector General shall initiate an investigation or audit of any alleged improper governmental activity. However, any request to conduct an investigation shall be in writing. (c) 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 Inspector General determines that disclosure of the information is necessary in the interests of justice. SEC. 4. Section 6129 of the Penal Code is amended to read: 6129. (a) (1) For purposes of this section, "employee" means any person employed by the Youth and Adult Correctional Agency, the Department of Corrections, the Department of the Youth Authority, the Board of Corrections, the Board of Prison Terms, the Youth Authority Board or the Inspector General. (2) For purposes of this section, "retaliation" means intentionally engaging in acts of reprisal, retaliation, threats, coercion, or similar acts against another employee who has done either of the following: (A) Has disclosed or is disclosing to any employee at a supervisory or managerial level, what the employee, in good faith, believes to be improper governmental activities. (B) Has cooperated or is cooperating with any investigation of improper governmental activities. (C) Has refused to obey an illegal order or directive. (b) (1) Upon receiving a complaint of retaliation from an employee against a member of management, the Inspector General shall commence an inquiry into the complaint and conduct a formal investigation where a legally cognizable cause of action is presented. All investigations conducted pursuant to this section shall be performed in accordance with Sections 6126.5 and 6127.3. The Inspector General may refer all other matters for investigation by the appropriate employing entity, subject to investigative oversight by the Inspector General. In a case in which the employing entity declines to investigate the complaint, it shall, within 30 days of receipt of the referral by the Inspector General, notify the Inspector General of its decision. The Inspector General shall thereafter, conduct his or her own inquiry into the complaint. If, after reviewing the complaint, the Inspector General determines that a legally cognizable cause of action has not been presented by the complaint, the Inspector General shall thereafter notify the complaining employee and the State Personnel Board that a formal investigation is not warranted. (2) When investigating a complaint, in determining whether retaliation has occurred, the Inspector General or the employing entity shall consider, among other things, whether any of the following either actually occurred or were threatened: (A) Unwarranted or unjustified staff changes. (B) Unwarranted or unjustified letters of reprimand or other disciplinary actions, or unsatisfactory evaluations. (C) Unwarranted or unjustified formal or informal investigations. (D) Engaging in acts, or encouraging or permitting other employees to engage in acts, that are unprofessional, or foster a hostile work environment. (E) Engaging in acts, or encouraging or permitting other employees to engage in acts, that are contrary to the rules, regulations, or policies of the workplace. (3) In a case in which the complaining employee has also filed a retaliation complaint with the State Personnel Board pursuant to Sections 8547.8 and 19683 of the Government Code, the State Personnel Board shall have the discretion to toll any investigation, hearing, or other proceeding that would otherwise be conducted by the State Personnel Board in response to that complaint, pending either the completion of the Inspector General's or the employing entity's investigation, or until the complaint is rejected or otherwise dismissed by the Inspector General or the employing entity. An employee, however, may not be required to first file a retaliation complaint with the Inspector General prior to filing a complaint with the State Personnel Board. (A) In a case in which the complaining employee has filed a retaliation complaint with the Inspector General but not with the State Personnel Board, the limitation period for filing a retaliation complaint with the State Personnel Board shall be tolled until the time the Inspector General or the employing entity either issues its investigative report to the State Personnel Board, or until the complaint is rejected or otherwise dismissed by the Inspector General or the employing entity. (B) In order to facilitate coordination of efforts between the Inspector General and the State Personnel Board, the Inspector General shall notify the State Personnel Board of the identity of any employee who has filed a retaliation complaint with the Inspector General, and the State Personnel Board shall notify the Inspector General of the identity of any employee who has filed a retaliation complaint with the State Personnel Board. (c) (1) In a case in which the Inspector General determines, as a result of his or her own investigation, that an employee has been subjected to acts of reprisal, retaliation, threats, or similar acts in violation of this section, the Inspector General shall provide a copy of the investigative report, together with all other underlying investigative materials the Inspector General determines to be relevant, to the appropriate director or chair who shall take appropriate corrective action. In a case in which the Inspector General determines, based on an independent review of the investigation conducted by the employing entity, that an employee has been subjected to acts of reprisal, retaliation, threats, or similar acts in violation of this section, the Inspector General shall submit a written recommendation to the appropriate director or chair who shall take appropriate corrective action. If the hiring authority initiates disciplinary action as defined in Section 19570 of the Government Code, it shall provide the subject with all materials required by law. (2) The Inspector General shall publish a quarterly summary of investigations, with personal identifying information removed, including, but not limited to, the conduct investigated, any recommended discipline, and any discipline actually imposed. (3) Any employee at any rank and file, supervisory, or managerial level, who intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts against another employee, pursuant to paragraph (2) of subdivision (a), shall be disciplined by the employing entity by adverse action as provided in Section 19572 of the Government Code. The disciplinary action shall require, at a minimum, a suspension for not less than 30 days without pay, except in a case in which the employing entity determines that a lesser penalty is warranted. In that case, the employing entity shall, within 30 days of receipt of the investigative report, provide written justification for that decision to the Inspector General. The employing entity shall also, within 30 days of receipt of the written report, notify the Inspector General in writing as to what steps, if any, it has taken to remedy the retaliatory conduct found to have been committed by any of its employees. (d) (1) In an instance in which the appropriate director or chair declines to take adverse action against any employee found by the Inspector General to have engaged in acts of reprisal, retaliation, threats, or similar acts in violation of this section, the director or chair shall notify the Inspector General of that fact in writing within 30 days of receipt of the investigative report from the Inspector General, and shall notify the Inspector General of the specific reasons why the director or chair declined to invoke adverse action proceedings against the employee. (2) The Inspector General shall, thereafter, with the written consent of the complaining employee, forward an unredacted copy of the investigative report, together with all other underlying investigative materials the Inspector General deems to be relevant, to the State Personnel Board so that the complaining employee can request leave to file charges against the employee found to have engaged in acts of reprisal, retaliation, threats, or similar acts, in accordance with the provisions of Section 19583.5 of the Government Code. If the State Personnel Board accepts the complaint, the board shall provide the charged and complaining parties with a copy of all relevant materials. (3) In addition to all other penalties provided by law, including Section 8547.8 of the Government Code or any other penalties that the sanctioning authority may determine to be appropriate, any state employee at any rank and file, supervisory, or managerial level found by the State Personnel Board to have intentionally engaged in acts of reprisal, retaliation, threats, or coercion shall be suspended for not less than 30 days without pay, and shall be liable in an action for damages brought against him or her by the injured party. If the State Personnel Board determines that a lesser period of suspension is warranted, the reasons for that determination must be justified in writing in the decision. (e) Nothing in this section shall prohibit the employing entity from exercising its authority to terminate, suspend, or discipline an employee who engages in conduct prohibited by this section.