BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2011-2012 Regular Session B 4 9 0 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? (More) SB 490 (Hancock) PageB 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 (More) SB 490 (Hancock) PageC 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 (More) SB 490 (Hancock) PageD 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). (More) SB 490 (Hancock) PageE 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 (More) SB 490 (Hancock) PageF 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.) (More) SB 490 (Hancock) PageG 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 (More) SB 490 (Hancock) PageH 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); (More) SB 490 (Hancock) PageI 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 (More) SB 490 (Hancock) PageJ 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: (More) SB 490 (Hancock) PageK 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 (More) SB 490 (Hancock) PageL 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, (More) SB 490 (Hancock) PageM 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? (More) SB 490 (Hancock) PageN 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 ---------------------- <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. (More) SB 490 (Hancock) PageO 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 ---------------------- <3> SB 1400 (Romero) (Ch. 736. Stats. 2004). (More) SB 490 (Hancock) PageP 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 (More) SB 490 (Hancock) PageQ 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) ---------------------- <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). (More) SB 490 (Hancock) PageR 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.'" (More) SB 490 (Hancock) PageS 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. (More) 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 ---------------------- ---------------------- <6> Id. (More) SB 490 (Hancock) PageU SB 490 (Hancock) PageV 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? ***************