BILL ANALYSIS Ó
SENATE COMMITTEE ON GOVERNMENTAL ORGANIZATION
Senator Isadore Hall, III
Chair
2015 - 2016 Regular
Bill No: AB 1233 Hearing Date: 6/28/2016
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|Author: |Levine |
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|Version: |6/15/2016 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Felipe Lopez |
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SUBJECT: Whistleblower investigation policy: state agencies
DIGEST: This bill requires a state agency that utilizes a
whistleblower investigation policy separate from the California
Whistleblower Protection Act (WPA) to publicly report, in the
manner in which the State Auditor is authorized to publicly
report, any investigation of a whistleblower complaint that has
substantiated improper government activities.
ANALYSIS:
Existing law:
1)Requires, under the WPA, the State Auditor to administer the
WPA and to investigate and report on improper governmental
activities.
2)Defines "improper governmental activity" to mean an activity
by a state agency or by an employee that is undertaken in the
performance of the employee's duties, undertaken inside a
state office, or if undertaken outside a state office by the
employee, directly relates to state government, whether or not
that activity is within the scope of his or her employment,
and that is in violation of any state or federal law or
regulation, as specified, or is economically wasteful,
involved gross misconduct, incompetency, or inefficiency.
3)Requires the State Auditor to establish a means of submitting
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allegations of improper governmental activity, and generally
requires the State Auditor to keep confidential every
investigation, including all investigative files and work
product.
4)Authorizes the State Auditor to issue a public report of an
investigation that has substantiated an improper governmental
activity, keeping confidential the identity of the employee or
employees involved.
5)Authorizes the State Auditor to release any findings or
evidence supporting any findings resulting from an
investigation whenever the State Auditor determines it
necessary to serve the interests of the state.
This bill requires any state agency that utilizes a
whistleblower investigation policy separate from this article to
publicly report, in the manner in which the State Auditor is
authorized to publicly report, any investigation of a
whistleblower complaint that has substantiated improper
governmental activities.
Background
Purpose of the bill. According to the author, "when state
agencies use internal whistleblower policies to avoid public
disclosure, they sidestep the transparency intended under the
WPA. AB 1233 promotes government transparency related to state
agency whistleblower investigations by requiring all state
agencies to meet the same public disclosure standard set by the
State Auditor. This bill protects transparency by ensuring that
all state agencies meet a reasonable standard of disclosure for
whistleblower complaints."
University of California Incident. The University of California
(UC) and the California State University (CSU) have their own
internal whistleblower programs. Under their own policies, when
UC and CSU receive a whistleblower complaint, instead of sending
the whistleblower complaint to the State Auditor, UC and CSU
investigate that complaint pursuant to their own policies.
Unlike the State Auditor, which publicly reports most if not all
of the most egregious complaints dealing with improper
governmental activities, neither the UC nor CSU are required to
publicly report their own internal substantiated complaints.
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The author argues that the need for public disclosure became
evident when, in May 2015, UC investigated a whistleblower
complaint and found that a physician on UC's Board of Regents
violated ethics rules by attempting to negotiate a financially
beneficial deal between his eye clinic and UCLA. The
affiliation would have personally benefitted the physician, who
was chair of the Regents' Health Services Committee.
UC's whistleblower complaint process concluded that the doctor
engaged in improper governmental activity. However, the
findings of the investigation were not made public. To the
contrary, the results of the investigation were obtained only
after the UC responded to a Public Records Act request filed
four months earlier. UC since stated that the results of their
whistleblower investigations are not disclosed publicly and that
the matter had been handled in accordance with UC policy.
California Whistleblower Protection Act. The WPA authorizes the
California State Auditor to receive complaints from state
employees and members of the public who wish to report an
improper governmental activity. An improper governmental
activity is defined as any action by a state agency or any
action by a state employee directly related to state government
that violates the law, violates an Executive Order of the
Governor, violates a Rule of Court, violates the State
Administrative Manual or State Contracting Manual, is
economically wasteful, or involves gross misconduct,
incompetency, or inefficiency. The complaints received by the
State Auditor shall remain confidential, and the identity of the
complainant may not be revealed without the permission of the
complainant, except to an appropriate law enforcement agency
conducting a criminal investigation.
Upon receiving a complaint, the State Auditor may conduct an
investigation into the facts alleged in the complaint to
determine whether an improper governmental activity has
occurred. Before launching an investigation, the State
Auditor's staff will conduct a careful evaluation of the
complaint to determine whether it has enough potential merit to
warrant the expenditure of state resources to conduct an
investigation.
After the State Auditor receives a complaint, any investigation
resulting from the complaint is confidential, so the State
Auditor cannot provide any updates about what is being done to
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investigate the complaint or what information has been
uncovered.
Information about the investigation will not be released unless
the State Auditor determines that an improper activity has
occurred and he or she decides to issue a public report of an
investigation that has substantiated an improper governmental
activity.
Making an Investigation Public. It is important to note that
while the State Auditor has the authority to make a public
report of an investigation that has substantiated an improper
governmental activity, the WPA does not require such reports to
be made public. With that said, the State Auditor does make
public most of its investigations that have been substantiated,
especially those that they find to be most significant and
egregious.
However, it is important to note that for state agencies that
use the WPA, the decision to make an investigation public is not
determined by the state agency involved in the investigation but
rather by the State Auditor. By not using the WPA, state
agencies have the ability to determine whether an investigation
involving their own agency can be kept private. This bill will
ensure that if a state agency chooses not to use the WPA that
their investigation, if found to be substantiated, shall be
publicly reported.
Suggested Amendments. The bill currently does not specify what
a state agency is, therefore the author, to satisfy the intended
goal of the bill, may wish to amend the bill to specify that a
state agency includes both the UC and CSU.
In addition, the author may wish to clarify that nothing in this
bill shall be construed to require the disclosure of information
that is prohibited from disclosure under any other provision of
law or is exempted from disclosure under the California Public
Records Act.
Prior/Related Legislation
SB 1395 (Rubio, Chapter 281, Statutes of 2012) renamed the
Bureau of State Audits as the State Auditor's Office and made
other minor code maintenance changes.
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AB 1102 (Lara, Chapter 328, Statutes of 2011) clarified the
authority of the State Auditor to conduct audits of the
judiciary, and includes all Bureau of State Audits' costs under
their continuous appropriation authority.
AB 567 (Villines, Chapter 452, Statutes of 2009) revised the WPA
to broaden the class of employees covered by the WPA, expanded
the definition of improper governmental activity that could be
reported by a whistleblower, and permitted the State Auditor to
publicly report on recommendations made to heads of state
agencies that have not been fully implemented after one year,
among others.
SB 951 (Hayden, Chapter 673, Statutes of 1999) renamed the
existing statute providing protections to state employees who
report improper governmental activities and enhanced those
statutory protections. In addition the bill aligned state law
with federal whistleblower statutes, and made related
legislative findings and declarations.
FISCAL EFFECT: Appropriation: No Fiscal
Com.: Yes Local: No
SUPPORT:
California Newspaper Publishers Association
OPPOSITION:
None received
ARGUMENTS IN SUPPORT: The California Newspaper Publishers
Association state that, "while many state agencies have policies
consistent with the reporting requirements applicable to the
State Auditor's office, others operate under their own policies,
policies that can bury findings of misconduct. Notably, the UC
and CSU systems have their own whistleblower policies.
Mandating that the UC and all state agencies affirmatively
publish findings of confirmed violations of law, court rules, or
misconduct, waste and efficiency allows the public to understand
where the agencies fail to do their best, and demand
improvement."
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