BILL NUMBER: AB 567 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 16, 2009
AMENDED IN SENATE JUNE 25, 2009
AMENDED IN ASSEMBLY APRIL 23, 2009
INTRODUCED BY Assembly Member Villines
FEBRUARY 25, 2009
An act to amend Sections 8545.1, 8545.2, 8545.4, 8546.2, 8547.2,
8547.4, 8547.5, 8547.6, 8547.7, and 8548.9 of, and to add Section
8546.10 to, the Government Code, relating to government practices.
LEGISLATIVE COUNSEL'S DIGEST
AB 567, as amended, Villines. Government practices.
(1) Existing law sets forth the duties and powers of the Bureau of
State Audits and makes reference to audits and investigative audits.
Existing law also prohibits the State Auditor or his or her
employees from releasing to the public, among other things, any
papers, correspondence, or any substantive information pertaining to
any audit not completed.
This bill would revise the authority of the Bureau of State
Audits to specifically perform investigations and would delete the
reference to investigative audits. The bill would make conforming
changes.
The bill would establish the Clearinghouse for Government
Innovation and Improvement Program, as resources become available,
within the Bureau of State Audits to receive and review, in good
faith, submissions from the public that recommend how to improve the
operations of the state or how to direct the focus of the state
relative to its essential functions. The State Auditor would be
required to take reasonable measures to create and maintain public
awareness of the program as resources become available.
(2) The California Whistleblower Protection Act sets forth the
circumstances and procedures under which a state employee, as
defined, may report improper governmental activities, as defined, or
make a protected disclosure, as defined, to the State Auditor, and
prohibits retaliation or reprisal against a state employee for these
acts.
This bill would add an individual appointed by the Legislature
to a state board or commission and who is not an
a Member or employee of the Legislature to the
list of state employees covered by these provisions and would
provide that state employee includes any former employee who met
specified criteria during his or her employment . The bill
would change the definition of improper governmental activity to
include any activity by an employee that is undertaken
inside a state office or that is undertaken outside a state office
that directly relates to state government in the
performance of the employee's duties, undertaken inside a state
office, or, if undertaken outside a state office by the employee,
directly relates to state government, whether or not that activity is
within the scope of his or her employment, and would change
the definition of protected disclosure to specifically include any
good faith communication to the Bureau of State Audits alleging an
improper governmental activity and any evidence delivered to the
Bureau of State Audits in support of the allegation. After receiving
a copy of the State Auditor's investigative report, the appointing
power would have 60 days to serve a notice of adverse action upon the
employee who is the subject of the investigative report. The State
Auditor also would be authorized to provide to the employees'
appointing power any evidence gathered during the investigation that
in his or her judgment is necessary to support an adverse action. The
State Auditor would be required to create, as specified, the means
for the submission of reports of improper governmental activity both
by transmission via mail or other carrier to a specified mailing
address and by electronic transmission through an Internet Web site
portal. The State Auditor would be prohibited from disclosing
the identity of a person who provides information in confidence to
further an investigation. The State Auditor may include
recommended actions to prevent the continuation or recurrence of the
improper governmental activity with the report that details the
improper governmental activity to the head of the employing agency.
The State Auditor would be required to report, as specified, to the
Joint Legislative Budget Committee, the Joint Legislative Audit
Committee, and the Department of Finance with respect to each
recommendation he or she has made, as specified, that was reported
more than one year ago and that has not been fully implemented by the
affected agency. The bill also would make conforming changes.
(3) This bill also would declare that the provisions of this act
shall impose no cost on the state and shall be implemented solely
using existing resources.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 8545.1 of the Government Code is amended to
read:
8545.1. (a) The State Auditor, and any employee or former
employee of the bureau, shall not divulge or make known to any person
not employed by the bureau in any manner not expressly permitted by
law any particulars of any record, document, or information the
disclosure of which is restricted by law from release to the public.
This prohibition includes, but is not limited to, the restrictions on
the release of records, documents, or information set forth in
Section 8545.
(b) Subdivision (a) also applies to either of the following:
(1) Any person or business entity that is contracting with or has
contracted with the bureau and to the employees and former employees
of that person or business entity.
(2) The officers and employees of and any person or business
entity that is contracting with or has contracted with any state or
local governmental agency or publicly created entity that has
assisted the bureau in the course of any audit or investigation or
that has received a draft copy of any report or other draft document
from the bureau for comment or review.
(c) Any officer, employee, or person who discloses the particulars
of any record, document, or other information in violation of this
section is guilty of a misdemeanor.
SEC. 2. Section 8545.2 of the Government Code is amended to read:
8545.2. (a) Notwithstanding any other provision of law, the State
Auditor during regular business hours shall have access to and
authority to examine and reproduce, any and all books, accounts,
reports, vouchers, correspondence files, and other records, bank
accounts, and money or other property, of any agency of the state,
whether created by the California Constitution or otherwise, any
local governmental entity, including any city, county, and school or
special district, and any publicly created entity, for any audit or
investigation. Any officer or employee of any agency or entity having
these records or property in his or her possession, under his or her
control, or otherwise having access to them, shall permit access to,
and examination and reproduction thereof, upon the request of the
State Auditor or his or her authorized representative.
(b) For the purposes of access to and examination and reproduction
of the records and property described in subdivision (a), an
authorized representative of the State Auditor is an employee or
officer of the state or local governmental agency or publicly created
entity involved and is subject to any limitations on release of the
information as may apply to an employee or officer of the state or
local governmental agency or publicly created entity. For the purpose
of conducting any audit or investigation, the State Auditor or his
or her authorized representative shall have access to the records and
property of any public or private entity or person subject to review
or regulation by the public agency or public entity being audited or
investigated to the same extent that employees or officers of that
agency or public entity have access. No provision of law providing
for the confidentiality of any records or property shall prevent
disclosure pursuant to subdivision (a), unless the provision
specifically refers to and precludes access and examination and
reproduction pursuant to subdivision (a). This subdivision does not
apply to records compiled pursuant to Part 1 (commencing with Section
8900) or Part 2 (commencing with Section 10200) of Division 2.
(c) Any officer or person who fails or refuses to permit access
and examination and reproduction, as required by this section, is
guilty of a misdemeanor.
SEC. 3. Section 8545.4 of the Government Code is amended to read:
8545.4. (a) In connection with any audit or investigation
conducted by the State Auditor, the State Auditor or his or her
designee, may do any of the following:
(1) Administer oaths.
(2) Certify to all official acts.
(3) Issue subpoenas for the attendance of witnesses and the
production of papers, books, accounts, or documents, or for the
making of oral or written sworn statements, in any interview
conducted as part of an audit or investigation.
(b) Any subpoena issued under this section extends as process to
all parts of the state and may be served by any person authorized to
serve process of courts of record or by any person designated for
that purpose by the State Auditor or his or her designee. The person
serving this process may receive compensation as allowed by the State
Auditor or his or her designee, not to exceed the fees prescribed by
law for similar service.
(c) Notwithstanding Section 7470, 7474, or 7491, subpoenas issued
under this section for financial records of financial institutions
concerning customers of financial institutions or for information
contained in those records shall not be subject to the requirement or
conditions of Section 7474.
SEC. 4. Section 8546.2 of the Government Code is amended to read:
8546.2. (a) The State Auditor shall request that any state
agency, as defined in Section 11000, whether created by the
California Constitution or otherwise, any local governmental agency,
including any city, county, city and county, school, or special
district, or any publicly created entity, that is the subject of an
audit or investigation conducted pursuant to this chapter provide
updates on its progress in implementing the recommendations made by
the State Auditor, at intervals prescribed by the State Auditor.
(b) Any state agency described in subdivision (a) shall provide
the State Auditor, in the form prescribed by the State Auditor, with
updates on implementation of recommendations as described in
subdivision (a).
SEC. 5. Section 8546.10 is added to the Government Code, to read:
8546.10. (a) Notwithstanding Section 8544.5, as resources become
available, the State Auditor shall establish the Clearinghouse for
Government Innovation and Improvement Program.
(b) Upon establishing the program, the State Auditor shall create
the means for members of the public to submit recommendations for
improving the operations of the state or for directing the focus of
the activities of the state toward the essential functions of
government both via mail or other carrier and electronic submission
through an Internet Web site portal. The State Auditor shall review,
in good faith, submissions that recommend improvements to the
efficiency of government operations or that recommend an approach
that the state can take relative to an essential function of
government. At the discretion of the State Auditor, selected
recommendations shall be forwarded to the Governor, the Director of
Finance, and the majority and minority party leaders in both houses
of the Legislature for review.
(c) Upon establishing the Clearinghouse for Government Innovation
and Improvement Program, as resources become available, the State
Auditor shall take reasonable measures to create and maintain public
awareness of the program.
SEC. 6. Section 8547.2 of the Government Code is amended to read:
8547.2. For the purposes of this article, the following terms
have the following meanings:
(a) "Employee" means any individual appointed by the Governor or
employed or holding office in a state agency as defined by Section
11000, including, for purposes of Sections 8547.3 to 8547.7,
inclusive, any employee of the California State University or an
individual appointed by the Legislature who is not an
employee of the Legislature. to a state board or
commission and who is not a Member or employee of the Legislature.
"Employee" includes any former employee who met the
criteria of this subdivision during his or her employment.
(b) "Improper governmental activity" means any activity by a
state agency or by an employee that is undertaken inside a
state office or, if undertaken outside a state office, that directly
relates to state government, whether or not that action is within the
scope of his state agency or by an employee that is
undertaken in the performance of the employee's duties, undertaken
inside a state office, or, if undertaken outside a state office by
the employee, directly relates to state government, whether or not
that activity 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, incompetency, or inefficiency. For
purposes of Sections 8547.4, 8547.5, 8547.10, and 8547.11, "improper
governmental activity" includes any activity by the University of
California or by an employee, including an officer or faculty member,
who otherwise meets the criteria of this subdivision.
(c) "Person" means any individual, corporation, trust,
association, any state or local government, or any agency or
instrumentality of any of the foregoing.
(d) "Protected disclosure" means any good faith communication
, including any communication based on, or when carrying out, job
duties , that discloses or demonstrates an intention
to disclose information that may evidence (1) an improper
governmental activity or (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. Protected disclosure specifically includes
any good faith communication to the Bureau of State Audits alleging
an improper governmental activity and any evidence delivered to the
Bureau of State Audits in support of the allegation.
(e) "Illegal order" means any directive to violate or assist in
violating a federal, state, or local law, rule, or regulation or any
order to work or cause others to work in conditions outside of their
line of duty that would unreasonably threaten the health or safety of
employees or the public.
(f) "State agency" is defined by Section 11000. "State agency"
includes the University of California for purposes of Sections 8547.5
to 8547.7, inclusive, and the California State University for
purposes of Sections 8547.3 to 8547.7, inclusive.
SEC. 7. Section 8547.4 of the Government Code is amended to read:
8547.4. The State Auditor shall administer this article and shall
investigate and report on improper governmental activities. If,
after investigating, the State Auditor finds that an employee may
have engaged or participated in improper governmental activities, the
State Auditor shall prepare an investigative report and send a copy
of the investigative report to the employee's appointing power.
Subject to the limitations of Section 8547.5, the State Auditor may
provide to the employee's appointing power any evidence gathered
during the investigation that, in the judgment of the State Auditor,
is necessary to support an adverse action or an action recommended
pursuant to subdivision (a) of Section 8547.7. Within 60 days after
receiving a copy of the State Auditor's investigative report, the
appointing power shall either serve a notice of adverse action upon
the employee who is the subject of the investigative report or set
forth in writing its reasons for not taking adverse action. The
appointing power shall file a copy of the notice of adverse action
with the State Personnel Board in accordance with Section 19574, and
shall submit a copy to the State Auditor. If the appointing power
does not take adverse action within 60 days of receiving a copy of
the State Auditor's investigative report, it shall submit its written
reasons for not doing so to the State Auditor and the State
Personnel Board, and adverse action may be taken as provided in
Section 19583.5. Any employee who is served with a notice of adverse
action may appeal to the State Personnel Board in accordance with
Section 19575.
SEC. 8. Section 8547.5 of the Government Code is amended to read:
8547.5. (a) The State Auditor shall create the means for the
submission of allegations of improper governmental activity both by
transmission via mail or other carrier to a specified mailing address
and electronic submission through an Internet Web site portal. The
State Auditor may request that a person submitting an allegation
provide his or her name and contact information and provide the names
and contact information for any persons who could help to
substantiate the claim. However, the State Auditor shall not require
any person submitting an allegation to provide his or her name or
contact information and shall clearly state on the agency Web site
that this information is not required in order to submit an
allegation.
(b) Upon receiving specific information that any employee or state
agency has engaged in an improper governmental activity, the State
Auditor may conduct an investigation of the matter. The identity of
the person providing the information that initiated the
investigation, or of any person providing information in confidence
to further an investigation, shall not be disclosed without the
written permission of the person providing the information except
that the State Auditor may make the disclosure to a law enforcement
agency that is conducting a criminal investigation.
SEC. 9. Section 8547.6 of the Government Code is amended to read:
8547.6. The State Auditor may request the assistance of any state
department, agency, or employee in conducting any investigation
required by this article. If an investigation conducted by the State
Auditor involves access to confidential academic peer review records
of University of California academic personnel, these records shall
be provided in a form consistent with university policy effective on
August 1, 1992. No information obtained from the State Auditor by any
department, agency, or employee as a result of the State Auditor's
request for assistance, nor any information obtained thereafter as a
result of further investigation, shall be divulged or made known to
any person without the prior approval of the State Auditor.
SEC. 10. Section 8547.7 of the Government Code is amended to read:
8547.7. (a) If the State Auditor determines that there is
reasonable cause to believe that an employee or state agency has
engaged in any improper governmental activity, he or she shall report
the nature and details of the activity to the head of the employing
agency, or the appropriate appointing authority, and may include
recommended actions to prevent the continuation or recurrence of the
activity. If appropriate, the State Auditor shall report this
information to the Attorney General, the policy committees of the
Senate and Assembly having jurisdiction over the subject involved,
and to any other authority that the State Auditor determines
appropriate.
(b) The State Auditor shall not have any enforcement power. In any
case in which the State Auditor submits a report of alleged improper
activity to the head of the employing agency or appropriate
appointing authority, that individual shall report to the State
Auditor with respect to any action taken by the individual regarding
the activity, the first report being transmitted no later than 60
days after the date of the State Auditor's report and monthly
thereafter until final action has been taken.
(c) The State Auditor shall keep confidential every investigation,
including, but not limited to, all investigative files and work
product, except that the State Auditor may issue any report of an
investigation that has been substantiated, keeping confidential the
identity of the individual or individuals involved, or, subject to
the limitations of Section 8547.5, release any findings or evidence
supporting any findings resulting from an investigation conducted
pursuant to this article that is deemed necessary to serve the
interests of the state.
(d) This section does not limit any authority conferred upon the
Attorney General or any other department or agency of government to
investigate any matter.
SEC. 11. Section 8548.9 of the Government Code is amended to read:
8548.9. (a) The State Auditor shall, by January 15th of each
year, report to the Joint Legislative Budget Committee, the Joint
Legislative Audit Committee, and the Department of Finance with
respect to each recommendation he or she has made based on an audit
or investigation that was reported more than one year prior and that
has not been fully implemented by the affected agency.
(b) The report shall clearly identify the state agency audited or
investigated, the audit or investigation that contained the
recommendation, a brief description of the recommendation, the date
it was issued, and the most recent explanation provided by the agency
to the State Auditor on the status of the recommendation.
(c) Any state agency that is notified by the State Auditor that it
has not fully implemented a recommendation made pursuant to this
chapter more than one year prior, shall do either of the following:
(1) Provide a written report to the State Auditor, the respective
policy committees and budget subcommittees of the Assembly and Senate
with oversight of the agency, and the Department of Finance,
explaining why the audit recommendation or investigation has not been
fully implemented.
(2) Notify all entities described in subdivision (a) that it will
begin implementing the audit recommendation or investigation
recommendation within 90 days of the notification by the State
Auditor, and include the estimated date of full implementation.
SEC. 12. The provisions enacted in this act shall impose no cost
on the state and shall be implemented solely using existing
resources.