BILL ANALYSIS
AB 1666
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1666 (Swanson)
As Amended June 9, 2010
Majority vote
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|ASSEMBLY: |76-0 |(May 13, 2010) |SENATE: |32-0 |(June 28, |
| | | | | |2010) |
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Original Committee Reference: L. & E.
SUMMARY : Authorizes a city, county, or city and county auditor
or controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding fraud, waste, or abuse by local government
employees.
The Senate amendments :
1)Delete the language that states that the authorization to
maintain a whistleblower hotline shall not prohibit any other
city, county, or agency from withholding the identity of a
complainant or other information pertaining to the
investigation or a complaint pursuant to statutory
authorization to withhold that information.
2)Make other minor, technical changes to the provisions of the
bill.
EXISTING LAW :
1)Authorizes a city, county, or city and county auditor or
controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding possible violations of state, federal,
or local statutes, rules, or regulations by local government
employees.
2)Requires a city, county, or city and county auditor who is
appointed by, or is an employee
of, a legislative body or the government agency that is governed
by the city, county, or city and county to obtain approval of
that legislative body or government agency prior to
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establishing the whistleblower hotline.
3)Authorizes the auditor or controller to refer calls received
on the whistleblower hotline to the appropriate government
authority for review and possible investigation.
4)Requires the auditor or controller or other appropriate
governmental agency to hold in confidence during the initial
review of a call information disclosed through the
whistleblower hotline, including the identity of the caller
and the parties identified by the caller.
5)Requires a call made to the whistleblower hotline or its
referral to an appropriate agency to not be the sole basis for
a time period under a statute of limitations to commence.
6)Authorizes a city or county auditor or controller to conduct
an investigative audit upon receiving specific information
that an employee or local government has engaged in improper
government activity.
7)Requires any investigative audit to be kept confidential
except to issue any report of an investigation that has been
substantiated or to release any findings resulting from a
conducted investigation that is deemed necessary to serve the
interests of the public. In any event, the identity of the
individual or individuals involved is required to be kept
confidential.
8)Defines "employee" to mean any individual employed by any
county, city, or city and county, including any charter city
or county and any school district, community college district,
municipal or public corporation, or political subdivision that
falls under the auditor's or controller's jurisdiction.
AS PASSED BY THE ASSEMBLY , this bill:
1)Authorized a city, county, or city and county auditor or
controller who is elected to office to maintain a
whistleblower hotline to receive calls from persons who have
information regarding fraud, waste, or abuse by local
government employees.
2)Prohibited any other city, county, or agency from withholding
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the identity of a complainant or other information pertaining
to the investigation of a complainant pursuant to a statutory
authorization to withhold that information.
3)Required any investigative audit to be kept confidential
except to issue any report of an investigation that has been
substantiated or to release any findings resulting from a
completed investigation that are deemed necessary to serve the
interests of the public. In any event, the identity of the
individual or individuals reporting the improper government
activity and the subject employee or employees is required to
be kept confidential.
4)Authorized the auditor or controller to provide a copy of a
substantiated audit report that includes the identities of the
individuals involved and other pertinent information
concerning the investigation to the appropriate appointing
authority for disciplinary purposes. The substantiated audit
report, any subsequent investigatory materials or information,
and the disposition of any resulting disciplinary proceedings
are subject to the confidentiality provisions of applicable
local, state, and federal statutes, rules, and regulations.
5)Defined "fraud, waste, or abuse" to mean any activity by a
local agency or employee that is undertaken in the performance
of the employee's official duties, including activities deemed
to be outside the scope of his or her employment that is in
violation of any local, state, or federal law or regulation
relating to corruption, malfeasance, bribery, theft of
government property, fraudulent claims, fraud, coercion,
conversion, malicious prosecution, misuse of government
property, or willful omission to perform duty, is economically
wasteful, or involves gross misconduct.
FISCAL EFFECT : None
COMMENTS : AB 2001 (Swanson), Chapter 325, Statutes of 2008,
which added Government Code Section 53087.6, was enacted to give
explicit authority to local governments to guarantee
confidentiality to those coming forward with whistleblower tips.
The sponsor of AB 2001, the Auditor's Office for the City of
Oakland, was anxious to establish a formal whistleblower
hotline, but before formalizing or advertising a whistleblower
hotline, the auditor wanted to be able to assure a whistleblower
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that their identity would be protected.
Since January 1, 2004, the Attorney General has been required to
maintain a statewide whistleblower hotline to receive calls from
the public with information regarding possible violations of
state or federal statutes, rules, regulations, or violations of
fiduciary responsibility by a corporation or limited liability
company to the shareholders, investors, or employees. The
Attorney General also is required to refer calls to the
appropriate government authority for further investigation.
During the initial review, the identity of both the
whistleblower and the party being investigated is held in
confidence [SB 777 (Escutia), Chapter 484, Statutes of 2003].
In 1993, the California Whistleblower Protection Act [SB 37
(Maddy), Chapter 12, Statutes of 1993] authorized the 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 that violates the law, is economically wasteful, or
involves gross misconduct, incompetency, or inefficiency. The
complaints received by the State Auditor are required to be
confidential, and the identity of the complainant cannot be
revealed without the permission of the complainant, except to an
appropriate law enforcement agency conducting a criminal
investigation.
According to the author, existing law has had some unintended
consequences and limitations when it took effect in 2009.
First, the statute is overly broad, with about 90% of the
complaints received through the whistleblower hotline being more
appropriate for investigation by the local government's
department of human resources. Second, the requirement the
auditor keep confidential the identities of all parties involved
has prevented local governments from using the information to
substantiate a complaint for disciplinary purposes. Lastly, the
statute conflicts with other city and county programs or
hotlines that do not deal with fraud, waste, or abuse by local
government employees.
Support arguments: Supporters say this bill will strengthen the
procedures of whistleblower hotlines related to fraud, waste, or
abuse by local government employees.
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Opposition arguments: The opposition might say everything about
a complaint called in to a whistleblower hotline should remain
confidential at all times.
Analysis Prepared by : Debbie Michel / L. GOV. / (916)
319-3958
FN:
0004926