BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 481


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          SENATE THIRD READING


          SB  
          481 (Hueso)


          As Amended  June 18, 2015


          Majority vote


          SENATE VOTE:  29-0


           ------------------------------------------------------------------ 
          |Committee       |Votes|Ayes                  |Noes                |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Local           |9-0  |Maienschein,          |                    |
          |Government      |     |Gonzalez, Alejo,      |                    |
          |                |     |Chiu, Cooley, Gordon, |                    |
          |                |     |Holden, Linder,       |                    |
          |                |     |Waldron               |                    |
          |                |     |                      |                    |
          |----------------+-----+----------------------+--------------------|
          |Appropriations  |14-0 |Gomez, Bigelow,       |                    |
          |                |     |Bloom, Bonta,         |                    |
          |                |     |Calderon, Chang,      |                    |
          |                |     |Eggman, Gallagher,    |                    |
          |                |     |                      |                    |
          |                |     |                      |                    |
          |                |     |Eduardo Garcia,       |                    |
          |                |     |Jones, Quirk, Rendon, |                    |
          |                |     |Weber, Wood           |                    |
          |                |     |                      |                    |








                                                                     SB 481


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          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 no reimbursement is required by this act,  
            pursuant to  California Constitution Article XIII B, Section  
            6, 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, or changes the penalty for a crime or infraction,  
            within the meaning of Government Code Section 17556, or  
            changes the definition of a crime within the meaning of  
            California Constitution Article XIII B, Section 6.


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, 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.  This bill is sponsored by San Diego City  
            Auditor Eduardo Luna.








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          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  
            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  








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            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  
            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  








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            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.


          4)California Public Records Act.  The California Public Records  
            Act (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)Policy Considerations.  The Legislature 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 Legislature  
               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 Legislature may  
               wish to consider whether, absent a prevalent statewide  








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               problem, this bill is necessary.


             b)   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."


          6)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,  
            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."


          7)Arguments in Opposition.  None on file.










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          Analysis Prepared by:                                             
                          Angela Mapp / L. GOV. / (916) 319-3958  FN:  
          0001164