BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 481


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          Date of Hearing:  June 17, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          SB  
          481 (Hueso) - As Amended April 8, 2015


          SENATE VOTE:  29-0


          SUBJECT:  Local government: auditors: independence.


          SUMMARY:  Prohibits the general counsel of a local government  
          from having direct oversight over that local government's  
          auditors.  Specifically, this bill:  





          1)Prohibits the general counsel of a city, county, city and  
            county, or district, or the employees of the general counsel  
            from having direct oversight over the city, county, city and  
            county, or district employees that conduct audits or that  
            conduct audit activities of the respective agency. 



          2)Provides that all city, county, city and county, and district  
            employees that conduct audits or that conduct audit activities  
            of those respective agencies shall not be required to report  
            to the general counsel or any employees of the general  








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            counsel.



          3)  Provides that no reimbursement is required by this act,  
            pursuant to Section 6 of Article XIIIB of the California  
            Constitution, because the only costs that may be incurred by a  
            local agency or school district will be incurred because this  
            act creates a new crime or infraction, eliminates a crime or  
            infraction,4) or changes the penalty for a crime or  
            infraction, within the meaning of Section 17556 of the  
            Government Code, or changes the definition of a crime within  
            the meaning of Section 6 of Article XIIIB of the California  
            Constitution.



          EXISTING LAW:   


          1)Requires all city, county, city and county, and district  
            employees that conduct audits or that conduct audit activities  
            of those respective agencies to conduct their work under the  
            general and specified standards prescribed by the Institute of  
            Internal Auditors or the Government Auditing Standards issued  
            by the Comptroller General of the United States, as  
            appropriate.
            


          2)Enumerates the following general standards for local  
            governments' internal audits and audit activities:



             a)   That auditors should be independent of the activities  
               they audit;










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             b)   That audits should be performed with proficiency and due  
               professional care;



             c)   That the scope of the audit should encompass the  
               examination and evaluation of the adequacy and  
               effectiveness of the organization's system of internal  
               control and the quality of performance in carrying out  
               assigned responsibilities;



             d)   That audit work should include planning the audit,  
               examining and evaluating information, communicating  
               results, and following up; and,
             e)   That the chief auditor should properly manage the  
               auditing department.





          3)Provides that nothing in the above provisions is intended to  
            limit the rights or obligations 


          of auditors to conduct audits and audit activities in accordance  
            with other laws and regulations that may apply to a particular  
            entity, as appropriate.
          4)Requires, pursuant to the California Public Records Act  
            (CPRA), public records to be open to inspection and gives  
            every person a right to inspect public records, with specific  
            exceptions.












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          5)Creates an exception for records that are subject to the  
            "attorney client privilege," which allows communications  
            between a public agency and its lawyers to be kept  
            confidential.


          6)Establishes requirements for internal auditor operations for  
            state agencies in order to achieve independence and  
            objectivity, as follows:





             a)   For any state agency that does not report to a governing  
               body, the internal auditor operations shall meet all of the  
               following requirements:



               i)     The chief internal auditor shall be accountable to  
                 the head or deputy head of the state agency;



               ii)    The chief internal auditor shall report audit  
                 findings and recommendations made under his or her  
                 jurisdiction to the head or deputy head of the state  
                 agency and to the general counsel to the state agency, if  
                 applicable; and,



               iii)   The operations shall be organizationally outside the  
                 staff or line management function of the unit under  
                 audit.










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             b)   For any state agency that is overseen by a governing  
               body, the internal audit operations shall meet all of the  
               following requirements:



               i)     The chief internal auditor shall be accountable to  
                 the audit committee of the governing body;



               ii)    The chief internal auditor shall report audit  
                 findings and recommendations made under his or her  
                 jurisdiction to the audit committee and the general  
                 counsel to the governing body; and,



               iii)   The operations shall be organizationally outside the  
                 staff or line management function of the unit under  
                 audit.



          FISCAL EFFECT:  According to the Senate Appropriations  
          Committee, pursuant to Senate Rule 28.8, negligible state costs.


          COMMENTS:


          1)Bill Summary.  This bill prohibits the general counsel of a  
            city, county, or district, or his or her employees, from  
            having direct oversight over those agencies' employees who  
            conduct audits.  The bill also specifies that employees of  
            those agencies who conduct audits must not be required to  
            report to the general counsel or any employees of the general  
            counsel.  This bill is sponsored by San Diego City Auditor  








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            Eduardo Luna.



          2)Author's Statement.  According to the author, "SB 481 seeks to  
            ensure transparency of government audit reports and the  
            independence of internal auditors...This bill is a response to  
            an existing practice that limits public access to audit  
            reports.  Some organizations require their internal auditors  
            (to) be supervised by their general counsel.  This structure,  
            which requires an auditor to regularly report to the general  
            counsel, weakens the independence and transparency of an  
            auditor's work.  Such a structure makes it easier for  
            organizations to render a report inaccessible to the public.   
            They can do this by claiming that a particular audit report is  
            a privileged communication between an attorney and client.   
            Once something is deemed a client-privileged communication,  
            the public no longer has access to it.                          
                                                                            
                                                                            
                                                                     



            "Audits provide essential accountability and transparency over  
            government programs and it is important that the public has  
            access to them.  This bill would address this issue by  
            prohibiting a general counsel from having direct supervision  
            over an auditor and ensure the public's access to these audit  
            reports."





          3)Background.  Existing law requires city, county and district  
            auditors to conduct their work under standards prescribed by  
            the Institute of Internal Auditors or the Government Auditing  
            Standards issued by the Comptroller General of the United  








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            States.



            The Institute of Internal Auditors (IIA) is an international  
            professional association that publishes Standards for the  
            Professional Practice of Internal Auditing, also known as the  
            Red Book, for use in all types of organizations where internal  
            auditors are found.  The Red Book includes statements of basic  
            requirements for the professional practice of internal  
            auditing and for evaluating the effectiveness of its  
            performance.  The requirements are internationally applicable  
            at organizational and individual levels.





            The United States Government Accountability Office (GAO) is an  
            independent, nonpartisan agency that works for Congress and  
            investigates how the federal government spends taxpayer  
            dollars.  The head of the GAO is the Comptroller General of  
            the United States.  The GAO publishes Generally Accepted  
            Government Auditing Standards, also known as the Yellow Book,  
            which provide a framework for conducting high quality audits  
            with competence, integrity, objectivity, and independence.   
            The Yellow Book is for use by auditors of government entities,  
            entities that receive government awards, and other audit  
            organizations performing Yellow Book audits.





            According to the 2011 revision of the Yellow Book, "Government  
            auditing is essential in providing accountability to  
            legislators, oversight bodies, those charged with governance,  
            and the public.  Audits provide an independent, objective,  
            nonpartisan assessment of the stewardship, performance, or  








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            cost of government policies, programs, or operations,  
            depending upon the type and scope of the audit."





            The Yellow Book explains that a government audit organization  
            can be structurally located within or outside the audited  
            entity.  "Audit organizations that are external to the audited  
            entity and report to third parties are considered to be  
            external audit organizations.  Audit organizations that are  
            accountable to senior management and those charged with  
            governance of the audited entity, and do not generally issue  
            their reports to third parties external to the audited entity,  
            are considered internal audit organizations."





            However, "Some government audit organizations represent a  
            unique hybrid of external auditing and internal auditing in  
            their oversight role for the entities they audit.  These audit  
            organizations have external reporting requirements consistent  
            with the reporting requirements for external auditors while at  
            the same time being part of their respective agencies.  These  
            audit organizations often have a dual reporting responsibility  
            to their legislative body as well as to the agency head and  
            management."





            Neither the Red Book nor the Yellow Book prohibits audits from  
            being reported to a general counsel.










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          4)California Public Records Act.  The CPRA requires public  
            records to be open to inspection during office hours and gives  
            every person a right to inspect public records, with specific  
            exceptions.  One exception to the CPRA's disclosure  
            requirements applies to records that are subject to the  
            "attorney client privilege," which allows communications  
            between a public agency and its lawyers to be kept  
            confidential.  Generally, the final reports of local agencies'  
            internal audits are public records that are open to  
            inspection, pursuant to the CPRA.



          5)Independence for Auditors.  SB 1452 (Speier), Chapter 452,  
            Statutes of 2006, enacted a number of provisions to update  
            auditing standards for local and state auditors, and to ensure  
            the independence of internal auditors for state agencies  
            specifically.  SB 1452 was the result of hearings by the  
            Senate Select Committee on Government Cost Control, which  
            found evidence that auditors for the Department of Corrections  
            and Rehabilitation were pressured to overlook certain  
            expenditures, or that their findings were dismissed or  
            eliminated from the Department's final report.  



            Provisions of SB 1452 protecting internal auditors of state  
            agencies included the following requirements:





             a)   For state agencies that don't report to a governing  
               body:









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               i)     The chief internal auditor must be accountable to  
                 the head or deputy head of the state agency;



               ii)    The chief internal auditor must report his or her  
                 audit findings and recommendations to the head or deputy  
                 head of the state agency and to the general counsel to  
                 the state agency, if applicable (emphasis added); and,



               iii)   The operations must be organizationally outside the  
                 staff or line management function of the unit under  
                 audit.



             b)   For state agencies that are overseen by a governing  
               body:



               i)     The chief internal auditor must be accountable to an  
                 audit committee of the governing body;



               ii)    The chief internal auditor must report his or her  
                 audit findings and recommendations to the audit committee  
                 and the general counsel to the governing body (emphasis  
                 added); and,



               iii)   The operations must be organizationally outside the  
                 staff or line management function of the unit under  








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                 audit.



            Local agency auditors are not subject to these requirements.   
            Local agency auditors can be appointed by the local governing  
            board, or they can be elected.  In addition, some local  
            jurisdictions have independent audit committees.





          6)Policy Considerations.  The Committee may wish to consider the  
            following:



             a)   Prevalence.  The author and sponsor have provided two  
               examples of local agencies where the auditor reports  
               directly to the agency's general counsel.  The Committee  
               may wish to ask the author or sponsor to provide examples  
               showing that these reporting relationships have resulted in  
               curtailed independence for those auditors or where this  
               reporting relationship led to the denial of a CPRA request  
               based on attorney-client privilege.  The Committee may wish  
               to consider whether, absent a prevalent statewide problem,  
               this bill is necessary.



             b)   Reporting to General Counsel.  Current law requires  
               internal auditors of state agencies to report their  
               findings and recommendations to their general counsels.   
               This bill prohibits local agency auditors from reporting to  
               their general counsels.  This language is intended to  
               address two stated concerns:  maintaining independence for  
               local auditors, and ensuring transparency of local public  
               records (in this case, audits or audit information).  This  








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               bill's language could create confusion regarding whether it  
               applies to the submission of reports to a general counsel  
               or whether it applies to a reporting relationship with a  
               general counsel.  The Committee may wish to consider  
               striking this language or clarifying the language to  
               specify a reporting relationship between audit staff and  
               general counsel.



             c)   Attorney-Client Privilege.  The Senate Governance and  
               Finance Committee, in its analysis of this bill, noted the  
               following: "?by prohibiting any local government internal  
               audit activities from being conducted under the auspices of  
               a general counsel, SB 481 may prevent local governments  
               from performing internal audits that may justifiably be  
               privileged communications.  For example, should a local  
               agency be prevented from having its general counsel's  
               office conduct an internal audit of personnel policies and  
               practices to determine whether they expose the agency to  
               potential legal liabilities?  The Committee may wish to  
               consider amending SB 481 to specify definitions or criteria  
               that distinguish between legitimate and illegitimate  
               applications of the attorney-client privilege to internal  
               audits."



          7)Arguments in Support.  City of San Diego City Auditor Eduardo  
            Luna, sponsor of this measure, writes, "Audits provide  
            essential accountability and transparency over government  
            programs.  Given its importance, the public's ability to  
            access these reports are paramount.  However, certain  
            practices limit the public's access to these audit reports.   
            One such practice is the transmittal of internal audit reports  
            to the organization's General Counsel.  When 

          reports are issued to the General Counsel, those reports are  
            then classified as attorney-client privileged communications,  








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            thereby limiting public disclosure.  SB 481 is a good  
            government bill and will ensure the public has access to the  
            audit reports by prohibiting employees who perform audits from  
            reporting organizationally to the General Counsel."



          8)Arguments in Opposition.  None on file.



          REGISTERED SUPPORT / OPPOSITION:




          Support


          City of San Diego City Auditor Eduardo Luna [SPONSOR]


          City of Berkeley City Auditor Ann-Marie Hogan


          City of Calexico


          City of El Centro City Manager Ruben A. Duran


          El Centro Chamber of Commerce and Visitors Bureau


          Imperial County Board of Supervisors












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          Opposition


          None on file




          Analysis Prepared by:Angela Mapp / L. GOV. / (916)  
          319-3958