BILL ANALYSIS
AB 1666
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Date of Hearing: May 5, 2010
ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
Cameron Smyth, Chair
AB 1666 (Swanson) - As Amended: March 24, 2010
SUBJECT : Local government: whistleblower hotline.
SUMMARY : Authorizes a city, county, or city and county auditor
or controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding fraud, waste, or abuse by local government
employees. Specifically, this bill :
1)Authorizes a city, county, or city and county auditor or
controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding fraud, waste, or abuse by local
government employees.
2)Prohibits any other city, county, or agency from withholding
the identity of a complainant or other information pertaining
to the investigation of a complainant pursuant to a statutory
authorization to withhold that information.
3)Requires any investigative audit to be kept confidential
except to issue any report of an investigation that has been
substantiated or to release any findings resulting from a
completed investigation that are deemed necessary to serve the
interests of the public. In any event, the identity of the
individual or individuals reporting the improper government
activity and the subject employee or employees is required to
be kept confidential.
4)Authorizes the auditor or controller to provide a copy of a
substantiated audit report that includes the identities of the
individuals involved and other pertinent information
concerning the investigation to the appropriate appointing
authority for disciplinary purposes. The substantiated audit
report, any subsequent investigatory materials or information,
and the disposition of any resulting disciplinary proceedings
are subject to the confidentiality provisions of applicable
local, state, and federal statutes, rules, and regulations.
5)Defines "fraud, waste, or abuse" to mean any activity by a
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local agency or employee that is undertaken in the performance
of the employee's official duties, including activities deemed
to be outside the scope of his or her employment that is in
violation of any local, state, or federal law or regulation
relating 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, is economically
wasteful, or involves gross misconduct.
EXISTING LAW :
1)Authorizes a city, county, or city and county auditor or
controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding possible violations of state, federal,
or local statutes, rules, or regulations by local government
employees.
2)Requires a city, county, or city and county auditor who is
appointed by, or is an employee
of, a legislative body or the government agency that is governed
by the city, county, or city and county to obtain approval of
that legislative body or government agency prior to
establishing the whistleblower hotline.
3)Authorizes the auditor or controller to refer calls received
on the whistleblower hotline to the appropriate government
authority for review and possible investigation.
4)Requires the auditor or controller or other appropriate
governmental agency to hold in confidence during the initial
review of a call information disclosed through the
whistleblower hotline, including the identity of the caller
and the parties identified by the caller.
5)Requires a call made to the whistleblower hotline or its
referral to an appropriate agency to not be the sole basis for
a time period under a statute of limitations to commence.
6)Authorizes a city or county auditor or controller to conduct
an investigative audit upon receiving specific information
that an employee or local government has engaged in improper
government activity.
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7)Requires any investigative audit to be kept confidential
except to issue any report of an investigation that has been
substantiated or to release any findings resulting from a
conducted investigation that is deemed necessary to serve the
interests of the public. In any event, the identity of the
individual or individuals involved is required to be kept
confidential.
8)Defines "employee" to mean any individual employed by any
county, city, or city and county, including any charter city
or county and any school district, community college district,
municipal or public corporation, or political subdivision that
falls under the auditor's or controller's jurisdiction.
FISCAL EFFECT : None
COMMENTS :
1)AB 2001 (Swanson), Chapter 325, Statutes of 2008, which added
Government Code Section 53087.6, was enacted to give explicit
authority to local governments to guarantee confidentiality to
those coming forward with whistleblower tips. The sponsor of
AB 2001, the Auditor's Office for the City of Oakland, was
anxious to establish a formal whistleblower hotline, but
before formalizing or advertising a whistleblower hotline, the
auditor wanted to be able to assure a whistleblower that their
identity would be protected.
2)Since January 1, 2004, the Attorney General has been required
to maintain a statewide whistleblower hotline to receive calls
from the public with information regarding possible violations
of state or federal statutes, rules, regulations, or
violations of fiduciary responsibility by a corporation or
limited liability company to the shareholders, investors, or
employees. The Attorney General also is required to refer
calls to the appropriate government authority for further
investigation. During the initial review, the identity of
both the whistleblower and the party being investigated is
held in confidence [SB 777 (Escutia), Chapter 484, Statutes of
2003].
In 1993, the California Whistleblower Protection Act [SB 37
(Maddy), Chapter 12, Statutes of 1993] authorized the State
Auditor to receive complaints from state employees and members
of the public who wish to report an improper governmental
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activity. An "improper governmental activity" is defined as
any action that violates the law, is economically wasteful, or
involves gross misconduct, incompetency, or inefficiency. The
complaints received by the State Auditor are required to be
confidential, and the identity of the complainant cannot be
revealed without the permission of the complainant, except to
an appropriate law enforcement agency conducting a criminal
investigation.
3)According to the author, existing law has had some unintended
consequences and limitations when it took effect in 2009.
First, the statute is overly broad, with about 90% of the
complaints received through the whistleblower hotline being
more appropriate for investigation by the local government's
department of human resources. Second, the requirement the
auditor keep confidential the identities of all parties
involved has prevented local governments from using the
information to substantiate a complaint for disciplinary
purposes. Lastly, the statute conflicts with other city and
county programs or hotlines that do not deal with fraud,
waste, or abuse by local government employees.
4)Technical Amendment : Staff notes in (f)(2) the author uses
the term local agency. For purposes of consistency in the
section, local government should be used instead of local
agency.
5)Support Arguments : Supporters say AB 1666 will strengthen the
procedures of whistleblower hotlines related to fraud, waste,
or abuse by local government employees.
Opposition Arguments : The opposition might say everything about
a complaint called in to a whistleblower hotline should remain
confidential at all times.
REGISTERED SUPPORT / OPPOSITION :
Support
City of San Diego [SPONSOR]
Opposition
None on file
AB 1666
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Analysis Prepared by : Jennifer R. Klein / L. GOV. / (916)
319-3958