BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 1666|
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                                 THIRD READING


          Bill No:  AB 1666
          Author:   Swanson (D)
          Amended:  6/9/10 in Senate
          Vote:     21

           
           SENATE LOCAL GOVERNMENT COMMITTEE  :  4-0, 6/16/10
          AYES:  Aanestad, Kehoe, DeSaulnier, Price
          NO VOTE RECORDED:  Cox

           ASSEMBLY FLOOR  :  76-0, 5/13/10 - See last page for vote


           SUBJECT  :    Local government:  whistleblower hotline

           SOURCE  :     City of San Diego


           DIGEST  :    This bill 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.

           ANALYSIS  :    The California Whistleblower Protection Act  
          authorizes the State Auditor to receive complaints from  
          state employees and members of the public who want to  
          report improper governmental activity (SB 37, Maddy,  
          Chapter 12, Statutes of 1993).  An "improper governmental  
          activity" is any action that violates the law, is  
          economically wasteful, or involves gross misconduct,  
          incompetency, or inefficiency.  The complaints received by  
          the State Auditor are confidential, and the identity of the  
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          complainant may not be revealed without the permission of  
          the complainant, except to an appropriate law enforcement  
          agency conducting a criminal investigation.  If there is  
          reasonable cause to believe that a state employee or agency  
          has engaged in improper governmental activity, the State  
          Auditor must report the nature and details of the activity  
          to the head of the employing agency, or the appropriate  
          appointing authority.  The State Auditor must keep  
          investigations confidential, but may issue reports of  
          substantiated investigations, keeping confidential the  
          identity of all individuals involved.

          The Attorney General must 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 must refer calls to the  
          appropriate government authority for further investigation.  
           During the initial review, the identities of the  
          whistleblower and the party being investigated are  
          confidential (SB 777, Escutia, Chapter 484, Statutes of  
          2003).

          This bill authorizes a local whistleblower hotline to  
          receive calls from people who have information regarding  
          "fraud, waste, or abuse" by local government employees.   
          This bill defines "fraud, waste, or abuse" as any activity  
          by a local agency or employee that is undertaken in the  
          performance of the employee's official duties, including  
          activity outside the scope of his or her employment, that:

          1.Violates 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.

          2.Is economically wasteful.

          3.Involves gross misconduct.

          The bill specifies that the term "improper government  







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          activity" has the same meaning as "fraud, waste, or abuse."

          This bill specifies that the identity of the individuals  
          reporting the improper government activity, and the subject  
          employees, must be kept confidential except, that an  
          auditor or controller can provide a copy of a substantiated  
          audit report that includes the identities of the subject  
          employees and other pertinent information concerning the  
          investigation to the appropriate appointing authority for  
          disciplinary purposes.  The substantiated audit report, and  
          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.

          This bill also makes additional technical and conforming  
          amendments.

           Comments
           
          In response to city auditors' concerns that state law  
          insufficiently protected whistleblowers who call local  
          hotlines, and individuals who are investigated as the  
          result of those calls, the Legislature imposed  
          confidentiality rules on local whistleblower hotline calls  
          and investigations (AB 2001, Swanson, Chapter 325, Statutes  
          of 2008).  City officials want to clarify some of the  
          Swanson bill's provisions.

          In implementing the local whistleblower hotline rules  
          enacted by the 2008 Swanson bill, San Diego city officials  
          identified three problems that this bill fixes.  First,  
          current law broadly allows hotlines to collect information  
          on possible violations of state, federal, or local  
          statutes, rules, or regulations.  By narrowing this  
          language to "fraud, waste, and abuse," this bill ensures  
          that the local whistleblower process focuses on those  
          activities and not on personnel complaints that are more  
          appropriately handled by human resources departments.   
          Second, the bill specifies that the confidentiality rules  
          do not prohibit an auditor or controller from providing a  
          substantiated audit report to an appropriate authority for  
          disciplinary purposes.  Third, the bill clarifies that its  
          confidentiality provisions do not apply to complaints  







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          submitted to other city or county agencies or hotlines.

           FISCAL EFFECT :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  6/16/10)

          City of San Diego (source) 


           ASSEMBLY FLOOR  :  
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Tom Berryhill, Blakeslee, Block,  
            Blumenfield, Bradford, Brownley, Buchanan, Charles  
            Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De  
            La Torre, De Leon, DeVore, Emmerson, Eng, Evans, Feuer,  
            Fletcher, Fong, Fuentes, Fuller, Furutani, Gaines,  
            Galgiani, Garrick, Gilmore, Hall, Harkey, Hayashi,  
            Hernandez, Hill, Huber, Huffman, Jeffries, Jones, Knight,  
            Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller,  
            Monning, Nava, Nestande, Niello, Nielsen, Norby, V.  
            Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva,  
            Smyth, Solorio, Audra Strickland, Swanson, Torlakson,  
            Torres, Torrico, Tran, Villines, Yamada, John A. Perez
          NO VOTE RECORDED:  Caballero, Hagman, Skinner 


          AGB:nl  6/17/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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