BILL NUMBER: SB 921 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 16, 2012
AMENDED IN SENATE AUGUST 17, 2011
AMENDED IN SENATE JULY 1, 2011
AMENDED IN SENATE MAY 11, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senators Lieu and Correa
FEBRUARY 18, 2011
An act to add Article 2.5 (commencing with Section 150)
to Chapter 2 of Part 1 of Division 2 of Sections 55,
56, and 57 to the Military and Veterans Code, relating to the
Military Department, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 921, as amended, Lieu. Military Department: Office of the
Inspector General : California Military Whistleblower Protection
Act .
Existing law establishes in state government the Military
Department, which includes the office of the Adjutant General, the
State Military Reserve, the California Cadet Corp
Corps , and the Naval Militia. There is also, within the
Military Department, the Office of the State Military
Department Inspector General. The State Military Department Inspector
General inspector general, an office that
inspects, audits, investigates, trains, and performs various duties
necessary to support the mission of the Military Department.
This bill would require the State Military Department
Inspector General to become independent of the chain of command of
the Military Department, as specified. This bill would require the
Governor to appoint establish specified requirements
for the position of California's inspector general, including, among
others, a requirement that the Governor appoint the inspector
general , subject to Senate confirmation . This
bill would specify the duties of the State
California Military Department Inspector General, and would
require the inspector general to continue to maintain a toll-free
public telephone number and Internet Web site to receive
these complaints and allegations. This
bill would also require that disciplinary action be brought against a
state officer or employee who intentionally retaliates against a
person who made a complaint or allegation of wrongdoing to the State
Military Department Inspector General, as provided, and would specify
that these officers and employees may be liable for civil damages
for these same actions. This bill would authorize the
inspector general to investigate specified complaints and allegations
of misconduct upon written request of specified persons, and would
provide that those requests are not a public record under the
California Public Records Act.
This bill would require the inspector general to continue to
investigate specified complaints and allegations of misconduct upon
written request of specified persons and would provide that those
requests are not a public record under the California Public Records
Act.
This bill would establish the California Military Whistleblower
Protection Act, which would prohibit a person from restricting a
member of the Military Department from making specified
communications to a Member of Congress, the Governor, a Member of the
Legislature, or any state or federal inspector general, or from
taking, or threatening to take, unfavorable personnel actions, or
withholding, or threatening to withhold, favorable personnel actions,
as a reprisal against a member of the Military Department for making
specified communications. This bill would require the California
Military Department Inspector General to take specified actions if a
member of the Military Department makes allegations that a prohibited
personnel action has been taken, or has been threatened to be taken,
as provided.
This bill would require the Military Department to provide one
training per year to the department's civil service employees
regarding the role and responsibility of the California Military
Department Inspector General and their rights under the California
Whistleblower Protection Act, the California Military Whistleblower
Protection Act, and any other relevant state or federal law.
The California Constitution requires that a statute that limits
the right of access to the meetings of public bodies or the writings
of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
This bill would declare that it is to take effect immediately as
an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all
of the following:
(a) The Governor is the commander and chief of the state militia.
(b) The Military 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 Military 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 California Military Department 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 of the
Military 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.
SEC. 2. Section 55 is added to the
Military and Veterans Code , to read:
55. (a) The position of inspector general shall satisfy all of
the following requirements:
(1) Be appointed by the Governor, with consideration of the
recommendation of the Adjutant General, and shall serve at the
discretion of the Governor.
(2) Meet the same qualifications established in this code for the
Assistant Adjutant General.
(3) Be subordinate to the Adjutant General and serve on state
active duty at the grade of O-6 or higher.
(b) The inspector general may not serve as the Adjutant General or
the Assistant Adjutant General for four years from the date of
leaving the position of inspector general.
(c) The department shall, from the amount annually appropriated to
it for purposes of this office, continue to fund the position of
inspector general.
(d) The inspector general shall have access to all employees and
documents of the department.
(e) The inspector general may receive communications from any
person, including, but not limited to, any member of the department.
(f) The inspector general shall, 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.
(g) The inspector general shall continue to maintain a toll-free
public telephone number and an Internet Web site to receive
complaints and allegations, including, but not limited to, those
described in subdivision (h) or the State Military Whistleblower
Protection Act. 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.
(h) (1) 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:
(A) A violation of law, including, but not limited to,
regulations, the Uniform Code of Military Justice, 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.
(2) 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.
(3) (A) A request described in paragraph (1) is 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.
(B) The inspector general shall not disclose to any person or
entity the identity of a person making a written request or an
allegation or complaint described in paragraph (1), unless the person
making the request, allegation, or complaint has consented to the
disclosure in writing.
(4) (A) When deemed appropriate by the inspector general, the
inspector general may refer to the Chief of the National Guard Bureau
any complaints or allegations described in paragraph (1), any
violations of the Uniform Code of Military Justice, or any violations
of any other state or federal law.
(B) When deemed appropriate by the inspector general, the
inspector general may refer to the State Auditor any complaints or
allegations described in subparagraph (B) of paragraph (1) or any
violation of state or federal law.
(i) If the inspector general receives, or becomes aware of, an
allegation, complaint, or misconduct regarding the Adjutant General
or the Assistant Adjutant General, the inspector general shall
immediately refer the matter to the Chief of the National Guard
Bureau and the Governor for review. The inspector general, by order
of the Governor, shall conduct an investigation regarding the
allegations concerning the Adjutant General or the Assistant Adjutant
General concurrently with any federal investigation where
appropriate. The inspector general shall report the findings to the
Governor under this subdivision.
(j) (1) 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. The report shall include, but not be
limited to, a description of significant problems discovered by the
office and a summary of investigations conducted by the office during
the previous year. Upon submitting the report to the Governor and
the Legislature, the report shall be made available to the public and
posted on the office's Internet Web site.
(2) A report to be submitted pursuant to paragraph (1) shall be
submitted in compliance with Section 9795 of the Government Code.
(k) For purposes of this section, all of the following shall
apply:
(1) "Department" means the Military Department.
(2) "Inspector general" means the California Military Department
Inspector General.
(3) "Member of the department" means the Adjutant General, any
person under the command of the Adjutant General, any person employed
by the department, including, but not limited to, any service member
or employee of the office of the Adjutant General, the California
National Guard, the State Military Reserve, the California Cadet
Corps, or the Naval Militia, any person on state active duty, any
person with a state commission, or any civil service or part-time
employee of the department.
(4) "Office" means the Office of the California Military
Department Inspector General.
SEC. 3. Section 56 is added to the
Military and Veterans Code , to read:
56. (a) This section shall be known, and may be cited, as the
"California Military Whistleblower Protection Act."
(b) Notwithstanding any other law, a person shall not do any of
the following:
(1) (A) Restrict a member of the department from communicating
with a Member of Congress, the Governor, a Member of the Legislature,
or any state or federal inspector general.
(B) Subparagraph (A) shall not apply to a communication that is
unlawful.
(2) Take, or threaten to take, an unfavorable personnel action, or
withhold, or threaten 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:
(A) A Member of Congress.
(B) The Governor.
(C) A Member of the Legislature.
(D) The inspector general.
(E) The State Auditor.
(F) A federal inspector general or any other inspector general
appointed under the Inspector General Act of 1978.
(G) Any member of a Department of Defense audit, inspection,
investigation, or law enforcement organization.
(H) Any local, state, or federal law enforcement agency.
(I) Any person or organization in the chain of command of the
department.
(J) Any other person or organization designated pursuant to
regulation or any other established administrative procedures for
such communications.
(c) Notwithstanding any other law, if a member of the department
submits to an inspector general an allegation that a personnel action
prohibited by paragraph (2) of subdivision (b) has been taken or has
been threatened to be taken against the member of the department,
the inspector general shall take action as provided by subdivision
(d).
(d) An inspector general receiving an allegation pursuant to
subdivision (c) shall do all of the following:.
(1) Expeditiously determine whether there is sufficient evidence,
in accordance with federal regulations governing federal inspectors
general, to warrant an investigation of the allegation.
(2) Conduct a separate investigation of the information that the
member making the allegation believes constitutes evidence of
wrongdoing under both of the following circumstances:
(A) There has not been a previous investigation.
(B) There has been a previous investigation but the inspector
general determines that the previous investigation was biased or
otherwise inadequate.
(3) Upon determining that an investigation of an allegation is
warranted, expeditiously investigate the allegation.
(e) 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 personnel action
prohibited by paragraph (2) of subdivision (b), the inspector general
shall refer the allegation to the Chief of the National Guard Bureau
and the Governor.
(f) (1) After completion of an investigation 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.
(2) 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.
(3) 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.
(4) 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.
(g) Nothing in this article is intended to supersede the rights,
benefits, processes, and procedures already afforded to members of
the department under existing law.
(h) For purposes of this section, all of the following shall
apply:
(1) A "communication" means any communication or report in which a
member of the department complains of, or discloses information that
the member of the department reasonably believes constitutes
evidence of, any of the following:
(A) A violation of law, including, but not limited to,
regulations, the Uniform Code of Military Justice, 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.
(2) "Department" means the Military Department.
(3) "Inspector general" means the California Military Department
Inspector General.
(4) "Member of the department" has the same meaning as defined in
Section 55.
(5) "Office" means the Office of the California Military
Department Inspector General.
SEC. 4. Section 57 is added to the
Military and Veterans Code , to read:
57. The Military Department shall provide, at a minimum, one
training per year to the department's civil service employees
regarding the role and responsibility of the California Military
Department Inspector General and their rights under the California
Whistleblower Protection Act, the Military Whistleblower Protection
Act, and any other relevant state or federal law.
SECTION 1. The Legislature finds and declares
both of the following:
(a) That there currently exists, within the State Military
Department, an Inspector General, who inspects, audits, investigates,
trains, and performs various duties necessary to support the mission
of the Military Department.
(b) That it is not the intent of the Legislature, in enacting this
bill, to create a new Inspector General for the Military Department,
but to instead require that Inspector General, who is currently in
the chain of the command of the Military Department, to become
independent of that chain of command.
SEC. 2. Article 2.5 (commencing with Section
150) is added to Chapter 2 of Part 1 of Division 2 of the Military
and Veterans Code, to read:
Article 2.5. State Military Department Inspector General
150. For purposes of this article, the following terms have the
following meanings:
(a) "Department" means the Military Department.
(b) "Office" means the Office of the State Military Department
Inspector General.
(c) "Inspector general" means the State Military Department
Inspector General.
150.10. (a) The inspector general, who is currently in the chain
of command of the Military Department, shall become independent of
that chain of command, and shall be appointed by the Governor
pursuant to subdivision (c).
(b) The inspector general shall meet the same qualifications
established in this code for the Adjutant General.
(c) (1) The Governor shall appoint the inspector general, subject
to confirmation by the Senate.
(2) Upon confirmation by the Senate, the inspector general shall
serve at the discretion of the Governor.
(3) The inspector general shall serve on state active duty at the
grade of O-6.
150.11. (a) The department shall, from the amount annually
appropriated to it for purposes of this office, continue to fund the
position of inspector general and provide the office space and
support personnel requested by the inspector general.
(b) The inspector general shall have access to all employees and
documents of the department.
150.12. (a) The inspector general may receive communications from
any person, including, but not limited to, any member of the
California National Guard, the State Military Reserve, and the Naval
Militia.
(b) The inspector general shall continue to maintain a toll-free
public telephone number to receive the complaints and allegations
described in subdivision (a) of Section 150.13. The inspector general
shall post this telephone number in clear view at every California
National Guard armory, flight facility, airfield, or installation.
150.13. (a) At the discretion of the inspector general or, upon a
written request by the Governor, a member of the California
Legislature, the Adjutant General, or any member of the public, the
inspector general shall continue to investigate any of the following:
(1) Complaints that the Adjutant General or the Assistant Adjutant
General has engaged in discrimination or retaliation for
whistleblowing.
(2) Allegations of misconduct by the Adjutant General or the
Assistant Adjutant General.
(3) Allegations of misconduct by any member of the California
National Guard.
(b) If the inspector general conducts an investigation at the
request of a member of the California Legislature, the inspector
general shall submit to that member a report of his or her findings
of that investigation.
(c) (1) A request described in subdivision (a) is 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.
(2) The inspector general shall not disclose to any person or
entity the identity of a person making a written request or an
allegation or complaint described in subdivision (a), unless the
person making the request, allegation, or complaint has consented to
the disclosure in writing.
(d) When deemed appropriate by the inspector general, the
inspector general shall refer to the federal Inspector General of the
Department of Defense any complaints and allegations pertaining to
violations of federal military laws or regulations.
150.14. (a) Any state officer or employee who intentionally
engages in acts of reprisal, retaliation, threats, coercion, or
similar acts against an employee of any state department, board, or
authority for having disclosed what the employee, in good faith,
believed to be a complaint or allegation described in subdivision (a)
of Section 150.13 shall be disciplined by adverse action as provided
in subdivision (a) of Section 19574 of the Government Code. If no
adverse action is instituted by the appointing power, the State
Personnel Board shall take adverse action against the officer or
employee in the same manner as provided in Section 19583.5 of the
Government Code.
(b) In addition to all other causes of action, penalties, or other
remedies provided by law, any state officer or employee who
intentionally engages in acts of reprisal, retaliation, threats,
coercion, or similar acts against an employee for having disclosed
what the employee, in good faith, believed to be a complaint or
allegation described in subdivision (a) of Section 150.13 shall be
liable in an action for damages brought against him or her by the
injured party. Punitive damages may be awarded by the court if the
acts of the offending party are proven to be malicious. If liability
has been established, the injured party also shall be entitled to
reasonable attorney's fees as provided by law.
(c) For purposes of this section "state officer" includes, but is
not limited to, a member of the Military Department on state active
duty and any officer who holds a state commission or appointment by
the Governor.
SEC. 3. SEC. 5. The Legislature finds
and declares that Section 2 of this act, which adds Section
150.13 55 to the Military and Veterans Code,
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:
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.
SEC. 4. SEC. 6. 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. The facts
constituting the necessity are:
In order to ensure that Military Department personnel who are
employed in state active duty, and thus are not under federal
military oversight, as well as those subject to the control of these
personnel, receive due process in the consideration of complaints and
appeals of disciplinary actions, it is necessary for this act to
take effect immediately.