BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2011-2012 Regular Session B
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9
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SB 490 (Hancock)
As Amended April 25, 2011
Hearing date: May 3, 2011
Penal Code
AA:dl
OFFICE OF THE INSPECTOR GENERAL
HISTORY
Source: Author
Prior Legislation: AB 900 (Solorio) - Ch. 7, Stats. 2007
SB 737 (Romero) - Ch. 10, Stats. 2005
SB 1400 (Romero) - Ch. 736, Stats. 2004
SB 1462 (Maddy) - Ch. 766, Stats. 1994
Support: California Correctional Supervisors Organization
Opposition:None Known
KEY ISSUE
SHOULD THE OFFICE OF THE INSPECTOR GENERAL BE RESTRUCTURED TO NARROW
ITS DUTIES, REPEAL PEACE OFFICER STATUS FOR ITS EMPLOYEES, AND BE
RECHARACTERIZED AS THE "OFFICE OF INDEPENDENT CORRECTIONAL
OVERSIGHT" WITH A DIRECTOR INSTEAD OF AN INSPECTOR GENERAL, AS
SPECIFIED?
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PURPOSE
The purpose of this bill is to restructure the Office of the
Inspector General to 1) narrow its duties and authorities, as
specified; 2) repeal the statutory authority giving its
personnel peace officer status and instead provide them with
non-peace officer authority relating to powers of arrest,
serving warrants, and access to summary criminal history
information, as specified; and 3) rename the office as the
"Office of Independent Correctional Oversight," with a director
instead of an Inspector General, with related changes.
Current law creates 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. (Penal Code § 6125.)
This bill would revise and reform the Office of the Inspector
General as follows:
Name Change
This bill would rename the Office of the Inspector General to
the Office of Independent Correctional Oversight ("Office").
Purpose
This bill would define the following purpose of the Office:
The purpose of the Office of Independent Correctional
Oversight shall be to perform its functions as
prescribed by law in a manner that promotes
management, fiscal and program competency, and
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accountability in the state correctional system in
furtherance of public safety and evidence-based
correctional practices.
Office Director
This bill would delete in law the position of Inspector General,
and would replace it, as proposed by this bill, as the position
of director for the Office.
Current law provides that the Governor shall appoint, subject to
confirmation by the Senate, the Inspector General to a six-year
term, and provides that the Inspector General may not be removed
from office during that term, except for good cause. (Penal
Code § 6125.)
This bill would change the term of office for the director of
the Office from 6 to 4 years.
Duties and Authorities
Current law charges the Inspector General with specified duties
concerning the Department of Corrections and Rehabilitation
("CDCR"). (Penal Code § 6126 et seq.) In summary these duties
and authorities include the following:
reviewing CDCR policy and procedures;
conducting audits of investigatory practices and other
audits;
responsibility for contemporaneous oversight of internal
affairs investigations and the disciplinary process;
conducting investigations of CDCR, as requested by
either the Secretary of CDCR or a Member of the
Legislature, pursuant to the approval of the Inspector
General under policies to be developed by the Inspector
General;
auditing each warden of an institution one year after
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his or her appointment, and audit
each correctional institution at least once every four
years, as specified;
recommending 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;
reviewing the Governor's candidates for appointment to
serve as warden for the state's adult correctional
institutions and as superintendents for the state's
juvenile facilities, as specified;
developing a methodology for producing a workload budget
to be used for annually adjusting the budget of the Office
of the Inspector General, as specified (Penal Code §
6126.);
initiating an investigation or an audit on the IG's own
accord (PC 6126(a).);
reporting annually to the Governor and the Legislature a
summary of his or her investigations and audits, as
specified (Penal Code § 6132);
conducting and administering the California
Rehabilitation Oversight Board (C-ROB), to "regularly
examine the various mental health, substance abuse,
educational, and employment programs for inmates and
parolees operated by" CDCR, as specified; (Penal Code §
6141); and
through its Bureau of Independent Review, doing the
following:
o conducting contemporaneous public oversight of CDCR
investigations conducted by the CDCR Office of Internal
Affairs;
o advising the public regarding the adequacy of each
investigation, and whether discipline of the subject of the
investigation is warranted;
o having discretion to provide public oversight of other
CDCR personnel investigations as needed; and
o issuing regular reports, no less than annually, as
specified (Penal Code § 6133).
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This bill would narrow these duties and authorities to the
following:
Mandatory Duties
This bill would maintain the following duties, without
substantive change, of the Office of the Inspector General under
the new Office:
the current duties of the Bureau of Independent Review;
the current warden vetting duties of the OIG, with the
additional requirement that the Office adopt and implement
regulations and procedures relating to warden candidate
reviews on or before December 31, 2012; and
the current duties relating to the California
Rehabilitation Oversight Board.
Discretionary Authority
This bill would authorize the Office to conduct oversight
reviews pertaining to the following significant correctional
issues relating to the Department of Corrections and
Rehabilitation:
(1) Security procedures, including contraband interdiction.
(2) Inmate, ward, and parolee administrative appeals and
grievances.
(3) Employee use of force.
(4) Prison Rape Elimination Act procedures.
(5) Inmate-patient health care delivery.
This bill would require that these discretionary oversight
reviews may be conducted only pursuant to the adoption of
regulations and procedures for determining how the issues before
the office shall be considered and selected.
Peace Office Status
Current law provides that the Inspector General and his or her
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deputies, assistants and employees are peace officers, as
specified. (Penal Code §§ 830.2 and 830.5)
This bill would delete the Inspector General and his or her
deputies, assistants and employees from these sections
designating them as peace officers.
Current law authorizes specified persons who are not peace
officers to exercise the powers of arrest of a peace office and
the power to serve warrants, as specified.<1> (Penal Code §
830.11.)
This bill would amend this section to include the director of
the Office of Independent Correctional Oversight and those
employees of the office as designated by the director, provided
that the primary duty of those persons shall be the enforcement
of the law relating to the duties of the Office, as described
and specified in this bill.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
---------------------------
<1> These persons generally have the primary duty of
enforcement and investigation of laws related to, and who are
employed by, the following state departments: the Department
of Financial Institutions; the Department of Real Estate; the
State Lands Commission; the Investigations Bureau of the
Department of Insurance; the Consumer Services Division or the
Rail Safety and Carrier Division of the Public Utilities
Commission; the State Board of Equalization, Investigations
Division; and the Department of Food and Agriculture. These
persons also receive state summary criminal history information
and shall be furnished that information on the same basis as
peace officers of the state, as specified. (Penal Code §
830.11.)
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On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear
the state's appeal of this order and, on Tuesday, November 30,
2010, the Court heard oral arguments. A decision is expected as
early as this spring.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Stated Need for This Bill
The author states:
This bill starts the process of eliminating the abuse
of peace officer status in state government and the
resulting waste of taxpayer dollars. Attorneys and
auditors in the Office of the Inspector General (OIG)
receive peace officer status despite the fact that
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their job duties do not require the specialized
functions of law enforcement officers.
A recent report by the Senate Office of Oversights and
Outcomes titled, "Gun-toting Auditors and Attorneys:
Does the Inspector General Need 105 Armed Peace
Officers?" found that outfitting each attorney and
auditor with guns, holsters, handcuffs, ammunition and
related equipment costs more than $2,000 per employee.
The report also revealed that their state-issued cars
logged more than 700,000 miles for home-to-work
commutes, at no cost to the employee. That figure
represented 70% of the total mileage utilized. The OIG
use peace officer perks to attract and retain its team
of lawyers and auditors. Since 2004, the proportion of
peace officers has grown in the agency from 44% in
2003 to 70% today.
SB 490 eliminates the wasteful spending at the OIG by
removing peace officer status from the Inspector
General and other employees of the OIG, and recasts
the mission and responsibilities of the OIG to ensure
the agency continues to carry out its work in a
cost-effective manner.
2. What This Bill Would Do
As described in detail above, this bill would restructure and
refocus the operations of the Office of the Inspector General.
In summary, this bill would do the following:
Eliminate peace officer status, and instead provide
arrest and search warrant authority and access to summary
criminal history information now available to other
similarly situated state employees who are not peace
officers;
Distill the duties of the office to the following
three:
o current Bureau of Independent Review
functions (oversight of CDCR investigations);
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o warden vetting; and
o C-ROB.
Focus discretionary oversight review to the
following five categories:
o Security procedures, including contraband
interdiction;
o Inmate, ward, and parolee administrative
appeals and grievances;
o Prison Rape Elimination Act procedures;
o Inmate-patient health care delivery; and
o Fiscal controls for contracts and grants.
Rename the OIG the "Office of Independent
Correctional Oversight;" and
Replace the Inspector General with a director,
appointed by Governor, subject to Senate; and
confirmation, with a term reduced from 6 to 4 years.
SHOULD THE OIG BE RESTRUCTURED AS PROPOSED BY THIS BILL?
WOULD THIS RESTRUCTURING SAVE GENERAL FUND DOLLARS WHILE
RETAINING KEY FUNCTIONS OF THE OFFICE?
3. Recent Senate Office of Oversight and Outcomes Report
In November of 2010, the Senate Office of Oversight and
Outcomes issued a report entitled, "Gun-Toting Auditors and
Attorneys: Does the Inspector General Need 105 Armed Peace
Officers?" The summary for this report includes the
following:
The Office of the Inspector General is an independent
state agency
established in 1998 to oversee and investigate alleged
wrongdoing within
the state corrections department. Among its duties,
OIG conducts audits
and investigations of the California Department of
Corrections and
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Rehabilitation, oversees the department's internal
affairs investigations,
collects complaints and tips about the correctional
system, evaluates
candidates for warden, and inspects facilities.
The OIG workforce has tripled in the last six years,
from 48 to 150. At the
same time, the proportion of peace officers has also
grown: from 44%
in 2003 to 70% today. Much of the growth at OIG was
the result of the
creation in 2004 of a Bureau of Independent Review.
The new bureau was
part of the state's response to the well-publicized
federal court oversight
of the prison system in the ongoing Madrid litigation,
which found that
state corrections officials were plagued by inadequate
internal policing and
insufficient investigation of wrongful behavior,
including excessive force.
As currently configured, 105 of the 150 positions in
the Office of the
Inspector General are sworn peace officers. Their
titles are spelled out in
Penal Code Section 830.2 (j), a statute amended in
2009 specifically to
include the 27 lawyers in the Bureau of Independent
Review. The office's
auditors have been peace officers since the OIG was
established, along
with the Inspector General himself.
. .
Among our findings:
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OIG staffers from the Inspector General on down are
expected to
carry a gun and ammunition at all times theyre on
duty: at the office,
on the road, in the air. But one place they always go
unarmed is
inside a prison. At California correctional
facilities, OIG staff must
check their weapons at the gate or leave them locked
in their cars.
Those weapons have price tags: $430 for a Glock
semi-automatic
pistol, $35 for a holster, $75 for ammunition. All
told, outfitting each
OIG peace officer costs taxpayers $2,050. Add the
take-home state
car, and the grand total exceeds $20,000.
In the past five years no OIG peace officer has
fired a gun on duty,
except at the firing range. That itself can be
dangerous one
Deputy Inspector General accidentally shot himself
while putting
in his required hours at the range.
70% of the mileage OIG peace officers put on their
take-home
state cars is for their daily commute to the office.
The Senate
oversight office asked for all vehicle home-storage
permits and was
given permits for 71 OIG peace officers. Based on
these permits,
their home-to-office commutes total 3,230 miles per
workday (an
average of 45 miles for each worker). Overall, of the
1 million miles
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logged by the OIG fleet in 2009/10, more than 700,000
miles were
for employees' commute to work.
During 2007, 2008 and 2009, OIG fielded more than
10,000
separate complaints and tips but only eight cases
were referred to
a law enforcement agency for possible criminal
prosecution during
those three years. Another six criminal
investigations were closed by
the OIG for lack of evidence, for a total of 14 cases,
according to
quarterly reports. Despite the low number of criminal
cases, in
2009 the OIG created a separate Bureau of Criminal
Investigation.
The career paths leading to these peace officer
positions indicate how
unusual the Office of the Inspector General is in this
area. In the two
OIG bureaus that house the attorneys and auditors, 98%
were
not peace officers before signing on with the
Inspector General.
The OIGs Bureau of Independent Review was modeled on
Los
Angeles County's Office of Independent Review, a team
of lawyers
who monitor the L.A. Sheriff's Department, including
county jails.
The Los Angeles operation, however, is emphatically a
civilian group.
"We don't feel we need peace officer status - we never
asked for it,
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we never needed it, we don't want it," its chief
attorney said.
Californias Attorney General employs 1,150 lawyers.
They dont
have take-home cars and only a handful fewer than 5
are sworn
peace officers. Just one carries a gun. None of the
AGs 80 auditors
are peace officers or get state cars.
As explained above, this bill would repeal the provisions in
existing law making OIG personnel peace officers. Instead, this
bill would amend existing law to give them arrest and search
warrant authority, and access to summary criminal history
information, as specified.
Earlier this year, a budget trailer bill (SB 78 (Committee on
Budget and Fiscal Review)(Ch. 10, Stats. 2011) included in the
state peace officer/firefighter classification employees of the
Office of the Inspector General who are no longer peace officers
after the effective date of this act but who were hired as peace
officers prior to April 1, 2011, or prior to the first day of
the first pay period following the enactment of this act if this
act is enacted after April 1, 2011. This bill does not affect
these grandfathering provisions. SB 78 bill also allowed
continued peace officer status for OIG employees designated by
the Inspector General, "provided that the primary duty of these
peace officers shall be conducting investigations, of the
Department of Corrections and Rehabilitation, Division of
Juvenile Justice, and the Board of Parole Hearings." This bill
would chapter out this provision, thereby eliminating any
statutory authority for peace officer status for these
positions.
SHOULD OIG EMPLOYEES NO LONGER BE PEACE OFFICERS?
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4. Background: OIG
In 1994, Senator Maddy's SB 1462 created the Office of the
Inspector General. According to this Committee's<2> analysis of
that bill, that bill followed prior, unsuccessful measures:
Last year this committee passed SB 328 (Maddy), which
also would have created an office of the Inspector
General in the Agency. SB 328 contained specific
provisions regarding the mission and operation of the
office, such as initiating and coordinating
internal investigative functions necessary to ensure
proper prison administration. That bill also
addressed issues of retaliation and confidentiality of
misconduct reports and whistleblowers. SB 328 died in
the Senate Rules Committee.
This bill also is similar to SB 347 (Presley), which
was heard in this committee in 1992. That measure
proposed an Office of Internal Affairs within the
Department of Corrections and passed this committee by
a vote of 9-0. It was later amended substantially
to require law enforcement agencies to adopt formal
policies regarding hot pursuit as a condition of
enjoying immunity and subsequently vetoed.
The analysis further explained:
The sponsor of this bill, California Correctional
Peace Officers Association (CCPOA), states that the
creation of an Office of Inspector General in the
Agency was one of a number of recommendations made by
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<2> The analysis was prepared for the Senate Judiciary
Committee, which at the time was a unified committee with
jurisdiction over both criminal and civil matters. The
committee was split the next session.
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the Little Hoover Commission for the improvement of
the Department of Corrections. It has become
apparent, states CCPOA, that there is a need for a
formal investigative body to review policy and
compliance.
. . .
The Little Hoover Commission supports this measure
based on the findings and recommendations in the
Commission's January, 1994 report, "Putting Violence
Behind Bars: Redefining the Role of California's
Prisons." The Commission states it found that the
"Department of Corrections is moving toward
centralized accountability and standardization of
policies, but that daily practices at individual
prisons continue to result in abuse, questionable
actions and fodder for lawsuits against the State."
The Commission further states that testimony from the
Madrid lawsuit regarding Pelican Bay indicates some
investigations are not conducted according to rigorous
standards, and that many critics believe current
internal investigations "are hampered by a 'no-snitch'
ethic and Department ties that are too close for
credible objectivity."
5. The Madrid Case, and the Origin of the "BIR"
The Madrid lawsuit noted by the Little Hoover Commission
ultimately gave rise to the Bureau of Independent Review ten
years after the initial creation of the OIG.<3> As explained in
the SOO report noted above:
After deep budget cuts in 2003, OIG was virtually shut
down - to be
resurrected just a year later. The catalyst for the
restoration was the federal
court's ongoing legal oversight in the Madrid
litigation, which continued
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<3> SB 1400 (Romero) (Ch. 736. Stats. 2004).
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to find constitutional infirmities in the internal
investigative process at the
California Department of Corrections and
Rehabilitation. In a scathing
1995 declaration, the original Madrid decision found
that state corrections
officials had "permitted and condoned" the use of
excessive force and were
hamstrung due to a longstanding culture of neglect and
inability to crack
internal impediments - including the so-called "code
of silence" among
prison staff.
As part of the Madrid remedy, the governor's office
and the federal court
agreed to create a new organization within the OIG
called the Bureau of
Independent Review (BIR). The OIG's budget was
supplemented to reflect
this new responsibility, and in early 2005 the office
began the work of
recruiting a team of investigative lawyers to staff
the bureau. . . .
Madrid was a class action lawsuit filed in the federal court in
1990 to challenge the constitutionality of a broad range of
conditions and practices at Pelican Bay State Prison. As
explained by the Court in the recent order terminating that
case:
In an order dated January 10, 1995, the Court
concluded that the California Department of
Corrections ("CDC") had "failed to provide inmates at
Pelican Bay with constitutionally adequate medical and
mental health care," and had "permitted and condoned a
pattern of using excessive force, all in conscious
disregard of the serious harm that these practices
inflict." Madrid v. Gomez, 889 F. Supp. 1146, 1279
(N.D. Cal. 1995). The Court ordered that the parties
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develop a remedial plan to address the constitutional
violations and appointed a Special Master to assist in
the formulation and execution of a remedy. The Court
ordered that it would "retain jurisdiction over this
action until such time as the Court is satisfied that
all constitutional violations found herein have been
fully and effectively remedied." Id. at 1283. The case
then entered a lengthy remedial phase, in which the
Special Master monitored Pelican Bay's provision of
medical and mental health care, as well as its
supervision of and investigation into the use of
force. . . .<4>
The Madrid Special Master's "Final Report Re Department of
Corrections Post Powers Investigations and Employee Discipline,"
dated June 24, 2004, included the following with respect to the
need for an independent review entity:
Perhaps most importantly, the evidence demonstrates
that without the Special Master's hearings the
investigation and discipline problems discussed in
this report would never have come to light. This
underscores the fact that the State of California has
no effective mechanism for monitoring and correcting
abuses when they occur within the Department of
Corrections' investigation and discipline system.
Without question, a competent, independent review
process is needed to oversee CDC investigations and
discipline, an organization with the authority to
provide oversight on a real time basis and to report
its monitoring findings to government officials and
the public.
. . .
Last, but perhaps most important, a Bureau of
Independent Review (BIR)
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<4> Order Terminating Force-Related Orders and Dismissing
Case, Madrid v. Cate, U.S. Dist. Ct. No. Dist. Of Cal. (No. C
90-3094 THE) (March 21, 2011).
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will be established within the Office of the Inspector
General. . . . The BIR will perform a real time
evaluation of every CDC abuse of force and employee
ethics related internal affairs case, including all
code of silence cases. The real time evaluation will
include reviewing the charging documents, the
investigation plan, the progress, quality, and
timeliness of the investigation, the investigative
findings, the discipline imposed by the hiring
authority, and all SPB hearings, appeals, and other
actions related to employee discipline. The BIR
will also have authority to initiate special
investigations and to investigate the
absence of charging documents where appropriate. The
BIR will prepare periodic
reports to the Governor, Legislature, and the Court
and provide a transparency to
the employee discipline process that has been lacking
in the past.<5>
In his March 21, 2011, order terminating Madrid , Judge Henderson
stated in part:
At the hearing and in papers filed with the Court,
Plaintiffs and OIG expressed
concern about the sustainability of the Madrid
reforms. Plaintiffs stated that BIR oversight is
----------------------
<5> In his 2004 report, the Special Master specifically noted
that Michael Gennaco, who headed the Office of Independent
Review that monitors the internal affairs investigations of the
Los Angeles County Sheriff, was appointed the Court's expert to
assist the parties with the remedial process involving the
establishment of the BIR. In its November 2011 report, the
Senate Office of Oversight and Outcomes quoted Mr. Gennaco's
views on OIG employees being peace officers: "'The distinction
between us and the state OIG is this: We don't work for anybody,
and that independence is key for us. We don't have peace officer
status,' Gennaco said. 'We don't feel we need peace officer
status - we never asked for it, we never needed it, we don't
want it.'"
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critical to maintaining the progress made during the
long history of this case and expressed concern about
Defendants' commitment to BIR oversight. However, they
acknowledged that the conditions at Pelican Bay do not
currently violate the constitution.
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This Court, too, is concerned about a reversion to the
unconstitutional practices that once existed at
Pelican Bay. The Court is proud of the work done
during the life of this case. Pelican Bay was once a
place where prison officials used force "for the very
purpose of inflicting punishment and pain." Madrid,
889 F. Supp. at 1200. BIR's oversight of prison
personnel investigations and discipline helped change
these conditions. The Court hopes that CDCR will
honor its commitment to continue working with BIR, and
that it will oppose any effort to dismantle BIR's
oversight.<6>
As described in detail above, this bill would retain the
substantive duties of the BIR in its restructured Office of
Correctional Oversight.
6. Warden Vetting
Until the correctional agency restructuring of 2005, wardens
were subject to Senate confirmation. In SB 737 (Romero) (Ch.
10, Stats. 2005), warden confirmation was repealed, and instead
a "Jenny" type process - that is, one similar to the process for
vetting judicial nominees - was established:
(Governor's Reorganization Plan 1) would eliminate
Senate confirmation for wardens. This bill
would retain that change, and supplement it with the
additional Senate confirmations noted above. In
addition, this bill would establish a vetting process
through the Office of Inspector General for
prospective "warden" - under this bill,
"chief operating officer" -- appointments. The
procedure would be similar to the Judicial Nominee
Evaluation process. Under this bill, the Inspector
General would issue a recommendation to the Governor
to become public only if the appointment is made
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<6> Id.
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notwithstanding a "not qualified" finding.<7>
The bill now before the Committee would retain this function in
the restructured Office of Independent Correctional Oversight,
and would require the office to promulgate rules and procedures
for this function no later than December 31, 2012.
SHOULD THE WARDEN VETTING RESPONSIBILITIES OF THE OIG CONTINUE,
AS PROPOSED BY THIS BILL?
7. C-ROB
As part of AB 900 (Solorio)(Ch. 7, Stats. 2007), the California
Rehabilitation Oversight Board ("C-ROB") was established in the
OIG to "regularly examine the various mental health, substance
abuse, educational, and employment programs for inmates and
parolees operated by
---------------------------
<7> Senate Committee on Public Safety Analysis of SB 737
(Romero), April 5, 2005.
CDCR, as specified. The bill now before the Committee would
retain this function in the restructured Office of Independent
Correctional Oversight.
SHOULD THE C-ROB CREATED BY AB 900 BE RETAINED, AS PROPOSED BY
THIS BILL?
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