BILL ANALYSIS Ó
SB 921
Page 1
ASSEMBLY THIRD READING
SB 921 (Lieu and Correa)
As Amended August 14, 2012
2/3 vote. Urgency
SENATE VOTE : 33-0
VETERANS AFFAIRS 8-0 APPROPRIATIONS 17-0
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|Ayes:|Cook, Pan, Atkins, Block, |Ayes:|Gatto, Harkey, |
| |Gorell, Nielsen, | |Blumenfield, Bradford, |
| |Williams, Yamada | |Charles Calderon, Campos, |
| | | |Davis, Donnelly, Fuentes, |
| | | |Hall, Hill, Cedillo, |
| | | |Mitchell, Nielsen, Norby, |
| | | |Solorio, Wagner |
| | | | |
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SUMMARY : Creates a statutory requirement that there be a
California Military Department Inspector General (Inspector
General) and specifies many of his or her responsibilities.
Specifically, this bill :
1)Makes the following findings and declarations:
a) The Governor is the commander and chief of the state
militia.
b) The Military Department (Department) includes the office
of the Adjutant General, the California National Guard, the
State Military Reserve, the California Cadet Corps, and the
Naval Militia.
c) Within the Department, there currently exists an
Inspector General, who inspects, audits, investigates,
trains, and performs various duties necessary to support
command functions and the mission of the Department.
d) The Inspector General and the California Military
Whistleblower Protection Act are intended to mirror federal
law and regulations that govern federal Inspector Generals,
specifically the Federal Inspector General Act of 1978 and
the federal Military Whistleblower Protection Act. Members
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of the Department should be free to communicate and report
waste, fraud, abuse of authority, violations of law, or
threats to the public health and safety without fear of
retribution.
e) Public servants best serve the citizenry when they can
be candid and honest without reservation in conducting the
people's business.
f) Section 2 of the bill, imposes a limitation on the
public's right of access to the meetings of public bodies
or the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California
Constitution. Pursuant to that constitutional provision,
the Legislature makes the following findings to demonstrate
the interest protected by this limitation and the need for
protecting that interest:
i) In order to protect the confidentiality of those
persons making complaints or allegations, as authorized
by this act, from any form of retaliation for having made
the complaint or allegation, it is in the state's
interest to limit public access to information.
g) This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or
safety within the meaning of Article IV of the Constitution
and shall go into immediate effect.
2)Requires that Inspector General shall satisfy all of the
following requirements:
a) Be appointed by the Governor, with consideration of the
recommendation of the Adjutant General, notification to the
Senate Rules Committee and shall serve at the discretion of
the Governor.
b) Serve a four year term and not more than two consecutive
terms.
c) Meet the same qualifications established in this code
for the Assistant Adjutant General.
d) Be subordinate to the Adjutant General and serve on
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state active duty at the grade of O-6 or higher.
e) Not be removed except for good cause.
3)Prohibits any person from serving as the Adjutant General or
the Assistant Adjutant General for four years from the date of
leaving the position of Inspector General.
4)States that a commissioned officer on state active duty
appointed to the position of inspector general who,
immediately prior to that duty, held a permanent state active
duty position shall remain on state active duty upon vacating
the Inspector General position.
5)Requires the Department to continue to fund the position of
Inspector General.
6)Mandates that the Inspector General shall have access to all
employees and documents of the Department.
7)Directs that the Inspector General may receive communications
from any person, including, but not limited to, any member of
the Department.
8)Requires the Inspector General to, at a minimum, continue to
perform the functions of inspections, assistance,
investigations, and teaching and training. The functions of
the Inspector General shall be performed in accordance with
applicable service laws, rules, and regulations governing
federal inspectors general.
9)Mandates that the Inspector General shall continue to maintain
a toll-free public telephone number and an Internet Web site
to receive complaints and allegations. The Inspector General
shall continue to post the telephone number and Internet Web
site in clear view at every California National Guard armory,
flight facility, airfield, or installation.
10)States that at the discretion of the Inspector General or the
Adjutant General, or upon a written request by the Governor, a
Member of the Legislature, any member of the Department, or
any member of the public, the Inspector General may
investigate any complaint or allegation regarding the
following:
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a) A violation of law, including, but not limited to,
regulations, the Uniform Code of Military Justice (UCMJ),
and any law prohibiting sexual harassment or unlawful
discrimination.
b) Gross mismanagement, a gross waste of funds, an abuse of
authority, or a substantial and specified danger to the
public health or safety.
c) States that for all written requests submitted by a
Member of the Legislature, the Inspector General shall
respond in writing with his or her findings. The response
shall contain only that information that may be lawfully
disclosed, and, if a complaint or allegation is at issue,
the response shall contain, at a minimum, information
regarding whether the complaint or allegation was unfounded
or sustained.
11)Specifies that if the Inspector General conducts an
investigation at the request of a Member of the Legislature,
the Inspector General shall submit to that member a report of
his or her findings of that investigation. The report shall
contain only information that may be lawfully disclosed, and
shall contain, at a minimum, information regarding whether the
complaint or allegations were unfounded or sustained:
a) A request described in the preceding paragraph is deemed
not a public record and is not subject to disclosure under
the California Public Records Act set forth in Chapter 3.5
(commencing with Section 6250) of Division 7 of Title 1 of
the Government Code.
12)Prohibits the Inspector General from disclosing to any person
or entity the identity of a person making a written request or
an allegation or complaint, unless the person making the
request, allegation, or complaint has consented to the
disclosure in writing.
13)Authorizes the Inspector General to refer to the Chief of the
National Guard Bureau any complaints or allegations as
specified, including any violations of the UCMJ, or any
violations of any other state or federal law.
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14)Permits the Inspector General to refer to the State Auditor
any complaints, allegations, or violations of state or federal
law.
15)Requires the Inspector General, in the event of a complaint,
or allegation of misconduct regarding the Adjutant General or
the Assistant Adjutant General, to immediately refer the
matter to the Chief of the National Guard Bureau and the
Governor for review.
16)Directs the Inspector General to conduct an investigation
regarding the allegations concerning the Adjutant General or
the Assistant Adjutant General concurrently with any federal
investigation where appropriate and report the findings to the
Governor.
17)Mandates that the Inspector General shall, on or before July
1, 2013, and on or before July 1 each year thereafter, submit
a report to the Governor and the Legislature and specifies the
contents of the report.
18)States that the Inspector General shall also prepare and
issue on a quarterly basis a public report that includes all
investigations completed in the previous quarter. The
Inspector General shall submit a copy of the quarterly report
to the Legislature, the Senate Veterans Affairs Committee, and
the Assembly Veterans Affairs Committee. The inspector
general shall have the discretion to redact or otherwise
protect the names of individuals, specific locations, or other
facts that, if not redacted, might hinder prosecution under
state or federal law or the UCMJ related to the investigation,
or where disclosure of the information is otherwise prohibited
by law, and to decline to produce any of the underlying
materials. In a case where allegations were deemed to be
unfounded, all applicable identifying information shall be
redacted. Each quarterly report shall be made available to
the public and posted on the office's Internet Web site.
19)Entitles a specified new section of code the "California
Military Whistleblower Protection Act."
20)Prohibits anyone from the following:
a) Restricting a member of the Department from
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communicating with a Member of Congress, the Governor, a
Member of the Legislature, or any state or federal
Inspector General. This prohibition does not apply to a
communication that is unlawful.
b) Taking, or threatening to take, an unfavorable personnel
action, or withholding, or threatening to withhold, a
favorable personnel action, as a reprisal against a member
of the Department for making a communication to any person,
including, but not limited to, any of the following:
i) A Member of Congress.
ii) The Governor.
iii) A Member of the Legislature.
iv) The Inspector General.
v) The State Auditor.
vi) A federal Inspector General or any other Inspector
General appointed under the Inspector General Act of
1978.
vii) Any member of a Department of Defense audit,
inspection, investigation, or law enforcement
organization.
viii) Any local, state, or federal law enforcement agency.
ix) Any person or organization in the chain of command
of the Department.
x) Any other person or organization designated pursuant
to regulation or any other established administrative
procedures for such communications.
21)Requires the Inspector General to investigate complaints
alleging the foregoing.
22)Directs the Inspector General receiving an allegation to do
all of the following:
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a) Expeditiously determine whether there is sufficient
evidence, in accordance with federal regulations governing
federal inspectors general, to warrant an investigation of
the allegation.
b) Conduct a separate investigation of the information that
the member making the allegation believes constitutes
evidence of wrongdoing under both of the following
circumstances:
i) There has not been a previous investigation.
ii) There has been a previous investigation but the
Inspector General determines that the previous
investigation was biased or otherwise inadequate.
iii) Upon determining that an investigation of an
allegation is warranted, expeditiously investigate the
allegation.
23)Specifies that if the Inspector General is not outside the
immediate chain of command of both the member submitting the
allegation and the individual or individuals alleged to have
taken a prohibited personnel action, the Inspector General
shall refer the allegation to the Chief of the National Guard
Bureau and the Governor.
24)States that the Inspector General shall submit a report on
the results of the investigation to the Adjutant General and a
copy of the report on the results of the investigation to the
member of the Department who made the allegation. The report
shall be transmitted to the Adjutant General, and the copy of
the report shall be transmitted to the member, not later than
30 days after the completion of the investigation:
a) The report on the results of the investigation
transmitted to the Adjutant General shall contain a
thorough review of the facts and circumstances relevant to
the allegation and the complaint or disclosure and shall
include documents acquired during the course of the
investigation, including summaries of interviews conducted.
The report may include a recommendation as to the
disposition of the complaint.
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25)Mandates that except for that information that is not
required to be disclosed under the California Public Records
Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code, in the copy of the report
transmitted to the member of the Department the Inspector
General shall ensure the maximum disclosure of information
that may be lawfully disclosed. The copy of the report need
not, however, include summaries of interviews conducted, or
any document acquired, during the course of the investigation.
These items shall be transmitted to the member of the
Department, if the member requests the items, with the copy of
the report or after the transmittal to the member of the copy
of the report, regardless of whether the request for those
items is made before or after the copy of the report is
transmitted to the member.
26)Directs that if, in the course of an investigation of an
allegation under this section, the Inspector General
determines that it is not possible to submit the report
required by this subdivision within 180 days after the date of
receipt of the allegation being investigated, the Inspector
General shall provide to the Adjutant General and to the
member making the allegation a notice of all of the following:
a) The reasons why the report may not be submitted within
that time.
b) When the report will be submitted.
27)States that nothing in this article is intended to supersede
the rights, benefits, processes, and procedures already
afforded to members of the Department under existing law.
28)Requires the Department to provide, at a minimum, one
training per year to the Department's civil service employees
regarding the role and responsibility of the Inspector General
and their rights under the California Whistleblower Protection
Act, the Military Whistleblower Protection Act, and any other
relevant state or federal law.
29)Contains an urgency clause allowing the bill to take effect
immediately upon enactment.
FISCAL EFFECT : According to the Assembly Appropriations
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Committee:
1)Minor and absorbable costs to the extent the prescriptive
requirements of this bill result in additional workload for
the existing, yet uncodified Inspector General.
2)Minor and absorbable costs for the required training regarding
the Inspector General and rights under the proposed California
Military Whistleblowers Act. The Military Department
indicates any costs for additional training are absorbable.
COMMENTS : Military Department (Department) employees who wish
to report waste, fraud, abuse, or otherwise "blow the whistle"
have several avenues to do so under existing law and they are
protected from reprisal when making such allegations. The
proper avenue for complaint varies due to the multiple statuses
which are possible for Department employees that may be subjects
of a complaint and the unique nature of the Department. The
proper system of justice/discipline also varies. In general,
military members are subject to the UCMJ, while civilians are
subject to progressive discipline and adverse personnel action.
As set forth above, there is federal law mandating a Department
of Defense Inspector General (DoDIG). Though there is no
statutory requirement to do so, the Military Department has
created the Inspector General to handle complaints about certain
status employees whose conduct would be outside the purview of
the DoDIG.
The bill imposes a statutory requirement that there be an
Inspector General and specifies many of his or her
responsibilities. Though the Department has shown no intent to
eliminate the position, if the bill passes, the Inspector
General position will no longer be subject to elimination by the
Department; it will be mandated through statute. The Inspector
General would remain in the chain of command at the Department.
However, as a safeguard against reduced independence, the
Inspector General is a direct appointee of the Governor. In
addition, the Inspector General is prohibited from assuming the
position of Adjutant General or Assistant Adjutant General for
four years from the date of leaving the position of Inspector
General and may only serve two consecutive terms as Inspector
General.
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The bill tries to mirror the multiple roles of the DoDIG in the
Inspector General to the extent possible (investigation,
education, training, assistance, etc.). The bill does not alter
the applicability of the civil service system and UCMJ to
personnel; UCMJ continues to apply to military personnel while
the civil service system and State Personnel Board procedures
apply to non-military personnel.
In the approximately eighteen months past there have been a
substantial number of allegations of misconduct at the
Department, allegations raised in multiple venues, including via
the press, to legislators and staff, through formal complaints,
and through whistleblower allegations, among others. These
allegations raised serious concerns about the integrity of the
Department. Some of these allegations involved personnel at the
highest levels of the Department. A new Adjutant General has
come aboard at the Department and instituted many changes and
reforms with some of his top goals to restore any damage
sustained to the reputation of the Department and redress
previous missteps to the extent possible.
The bill is at least partially in response to the misconduct
allegations raised in the previous paragraph. As set forth
above, some of the allegations causing the greatest concern
involved personnel at the highest levels of the Department. The
bill directly addresses this particular situation, specifying a
process for the Inspector General to use when allegations of
misconduct involve the Adjutant General or the Assistant
Adjutant General.
The bill reiterates the protections for those who make
whistleblower complaints. In summary, personnel are permitted
to make lawful communications when making whistleblower
complaints and are protected from retaliation for doing so.
The bill also creates several reporting requirements so that
complainants, the Legislature and in some circumstances the
Governor are informed about the work of the Inspector General.
The bill balances the need for reports on complaints with the
privacy rights of those subject to investigation and those
making complaints.
Finally, the bill imposes a new training requirement on the
Department. It must educate civil service members of the
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Department annually regarding the role and responsibility of the
Inspector General and the members' rights under the California
Whistleblowers Protection Act (CAWPA), the Military
Whistleblower Protection Act, and any other relevant state or
federal law.
Analysis Prepared by : John Spangler / V. A. / (916) 319-3550
FN: 0004931