BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 921 (Lieu)
As Amended May 11, 2011
Hearing Date: June 28, 2011
Fiscal: Yes
Urgency: Yes
TW
SUBJECT
Military Department: Office of Inspector General
DESCRIPTION
This bill would require the Governor to appoint an inspector
general, operating independent of the chain of command, to
oversee the California State Military Department. This bill
would prohibit retaliation by state officers or employees and
would provide a private right of action for damages, with a
potential award of attorney's fees and punitive damages for
malicious conduct. The inspector general would receive and
investigate complaints, which would be exempt from public
disclosure under the California Public Records Act, alleging
misconduct, discrimination, or retaliation against the Adjutant
General or Assistant Adjutant General of the Military
Department.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
All California State Military Department State Civil Service
(SCS) employees and State Active Duty (SAD) and State Military
Reserve (SMR) personnel have the right to present complaints or
requests for assistance to the State Inspector General (IG)
about possible regulatory or procedural violations concerning
personnel actions that their supervisor has failed to (or
cannot) resolve. These complaints or grievances may include
what these military personnel and employees reasonably believe
to be evidence of fraud, waste, and abuse.
(more)
SB 921 (Lieu)
Page 2 of ?
In 1876, the United States Secretary of War declared that state
military inspector generals would report directly to and be
under the control of each state's commander general. As such,
the IG of the California State Military Department reports
directly to the Adjutant General.
According to the California State Inspector General's Web site,
the IG must maintain a clear distinction between being an
extension of the Adjutant General and a sworn duty to serve as a
fair and impartial fact finder and problem solver. (See
.) However, if the
employee or personnel complaint involves fraud, waste, or abuse
perpetrated by the Adjutant General or other senior officials,
the complaints submitted by the IG to the Adjutant General may
result in the Adjutant General taking no action to address the
complaint or retaliating against the complaining employees or
personnel.
This bill is a response to a recent Sacramento Bee investigation
exposing financial and management misconduct involving the
Adjutant General. The Sacramento Bee reported that Major
General William H. Wade II, Adjutant General until 2010,
collected dual pay from the state and federal government for the
same days of work. Although Major General Wade received $90,000
in state pay for permitted federal workdays, he also received
"nearly $155,000 in state pay for federal workdays in excess of
dual pay limits recognized by the California Department of
Personnel Administration and current Guard leadership."
(Piller, Former California National Guard chief's dual pay to be
probed (Apr. 23, 2011) The Sacramento Bee <
http://www.sacbee.com/2011/04/23/3574613/
former-california-national-guard.html> (as of June 21, 2011).)
AB 1445 (Umberg, 2005) contained similar provisions to this bill
and was held in the Assembly Committee on Appropriations. AB
2620 (Umberg, 2006) was substantially similar to the provisions
of this bill and was held in the Senate Committee on
Appropriations.
This author-sponsored bill would remove the IG from under the
command of the Adjutant General, provide anti-retaliation
protections for complaints made by SCS employees and SAD and SMR
personnel. This bill also would exempt these complaints from
public disclosure under the California Public Records Act.
SB 921 (Lieu)
Page 3 of ?
CHANGES TO EXISTING LAW
Existing federal law provides that an inspector general who
investigates a retaliation allegation should be outside the
immediate chain of command of both the member of the armed
forces submitting the allegation and the individual(s) alleged
to have taken the retaliatory action. (10 U.S.C. Sec.
1034(c)(5).)
Existing federal law provides that an allegation of a violation
of law or regulation or gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety shall be investigated by the
Inspector General. (10 U.S.C. Sec. 1034(c)(1)-(2).)
Existing federal law prohibits retaliation and unfavorable
personnel actions as a reprisal against a member of the armed
forces who submits an allegation of a violation of law or
regulation or gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger to
public health or safety. (10 U.S.C. Sec. 1034(b).)
Existing federal law provides that the documents acquired
(including the written allegation) and summaries of interviews
conducting during the course of the inspector general's
investigation are not required to be submitted with the
investigation report prepared by the IG. (10 U.S.C. Sec.
1034(e)(2).)
Existing state law , the California Whistleblower Protection Act,
provides that state employees should be free to report waste,
fraud, abuse of authority, violation of law, or threat to public
health without fear of retribution. (Gov. Code Sec. 8547.1.)
Existing state law authorizes the State Auditor to investigate
information received that any employee or state agency has
engaged in an improper governmental activity, and the identity
of the person providing the information that initiated the
investigation, or of any person providing information in
confidence to further an investigation, shall not be disclosed
without the written permission of the person providing the
information except that the State Auditor may make the
disclosure to a law enforcement agency that is conducting a
criminal investigation. (Gov. Code Sec. 8547.5(b).)
Existing state law authorizes a court, in a retaliation
SB 921 (Lieu)
Page 4 of ?
proceeding, to award punitive damages where the acts of the
offending party are proven to be malicious and attorney's fees
where liability has been established. (Gov. Code Sec.
8547.8(c).)
Existing state law prohibits retaliation against any other state
officer or employee or member of the public who in good faith
reports, discloses, divulges, or otherwise brings to the
attention of, the Attorney General or any other appropriate
authority, any facts or information relative to actual or
suspected violation of any law of this state or the United
States occurring on the job or directly related to the job.
(Gov. Code Sec. 19572(x).)
This bill would require the Governor to appoint a State Military
Department Inspector General (IG), as specified, operating
independent of the chain of command, to oversee the California
State Military Department.
This bill would provide that the IG would receive and
investigate complaints or allegations, from any person,
including but not limited to, any member of the California
National Guard, the State Military Reserve, and the Naval
Militia, of misconduct, discrimination, or retaliation against
the Adjutant General or Assistant Adjutant General of the
Military Department and allegations of misconduct by any member
of the California National Guard.
This bill would provide that these complaints and allegations
would be exempt from public disclosure under the California
Public Records Act (CPRA).
This bill would prohibit the IG from disclosing to any other
person or entity the identity of the person making the complaint
or allegation, unless the person provides written consent.
This bill would prohibit retaliation by state officers or
employees and would provide a private right of action for
damages, with a potential award of reasonable attorney's fees
and punitive damages for malicious conduct.
COMMENT
1. Stated need for the bill
The author writes:
SB 921 (Lieu)
Page 5 of ?
Over several months, the Senate Committee on Veterans Affairs
held oversight hearings of the CNG �California National Guard]
and the �Military] Department. Many of the egregious
violations uncovered by both the Committee and media reports
were due to the inability of the Department to exercise
appropriate oversight within the chain of command. Currently,
complaints regarding misconduct by senior officials within the
Department, including the Adjutant General (TAG), are referred
to the Department itself. These complaints are supposed to be
investigated by the Inspector General (IG). However, the IG
reports directly to the TAG.
SB 921 would simply place the existing Inspector General
outside of the chain of command. It is imperative that
Military Department personnel who are employed on active state
duty, and thus are not under federal military oversight,
receive due process in the consideration of complaints and
appeals of disciplinary actions. Specifically, SB 921 would
establish oversight procedures in regard to certain personnel
actions including discrimination complaints, complaints of
retaliation for whistleblowing, and allegations of misconduct
on the part of senior officers and leaders.
2. Providing protection from retaliation for service members
submitting a complaint
This bill would authorize the IG to investigate any state
officer or employee who intentionally engages in retaliation
against an employee for having disclosed, in good faith, a
complaint or allegation that the Adjutant General or Assistant
Adjutant General has engaged in discrimination, retaliation, or
misconduct or allegations of misconduct of a member of the
California National Guard. Existing federal law prohibits
retaliation and unfavorable personnel actions in retaliation
against a member of the armed forces who submits an allegation
of a violation of law or regulation or gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health or safety. (10 U.S.C. Sec.
1034(b).) Existing state law prohibits retaliation against any
other state officer or employee or member of the public who in
good faith reports, discloses, divulges, or otherwise brings to
the attention of, the Attorney General or any other appropriate
authority, any facts or information relative to actual or
suspected violation of any law of this state or the United
States occurring on the job or directly related to the job.
SB 921 (Lieu)
Page 6 of ?
(Gov. Code Sec. 19572(x).)
The author argues that this bill would provide a means for
independent investigation of allegations of misconduct by senior
military officials and establish oversight procedures for
personnel actions including discrimination complaints,
complaints of retaliation for whistleblowing, and allegations of
misconduct on the part of senior military officers. As
discussed above, federal and state laws already provide
protection from retaliation to state employees. Since this bill
would remove the existing IG from under the chain of command of
the Adjutant General, a new section of the Military and Veterans
Code providing for separate duties and responsibilities of the
IG are necessary. These duties would include investigating
retaliation complaints and this bill adopts existing federal and
state anti-retaliation statutes relating to these duties.
3. Excluding service member complaints to the IG from public
disclosure under the CPRA
This bill would exempt from disclosure under the CPRA
misconduct, discrimination, and retaliation complaints and
allegations made by service members against the Adjutant General
or Assistant Adjutant General and allegations of misconduct by
any member of the California National Guard. Existing law, the
California Whistleblower Protection Act (CWPA), provides that
the identity of the person reporting waste, fraud, abuse of
authority, violation of law, or of any person providing
information in confidence to further an investigation, shall not
be disclosed without the written permission of the person
providing the information. (Gov. Code Sec. 8547.5(b).)
In 1943, the Legislature enacted the CPRA, which declared that
the people of the state had a fundamental and necessary right of
access to the conduct of the people's business. (Gov. Code Sec.
6250.) Within this declaration is the provision that
individuals have a right of privacy. (Id.) Further, the CPRA
exempts from disclosure information related to records of
complaints to any state or local agency for correctional or law
enforcement purposes and a reporting individual's identity may
not be disclosed when disclosure would endanger the safety of a
witness or other person involved in the investigation, or unless
disclosure would endanger the successful completion of the
investigation or a related investigation. (Gov. Code Sec.
6254(f).) Whistleblowers arguably fall under this exemption
since disclosure of their identities could endanger the
SB 921 (Lieu)
Page 7 of ?
successful completion of the investigation and runs contrary to
the intent of the CWPA, which encourages individuals to freely
report violations of the law. A whistleblower's identity also
is exempt from disclosure when the individual makes the
complaint to any governmental agency which agrees to treat the
disclosed material as confidential. (Gov. Code Sec. 6254.5(e).)
The CWPA specifically provides that the identity of the
individual reporting a violation in confidence shall not be
disclosed. (Gov. Code Sec. 8547.5(b).)
SB 37 (Maddy, Ch. 12, Stats. 1993) made confidential the
identity of persons involved in an investigation by the State
Auditor that any employee or state agency has engaged in an
improper governmental activity. AB 567 (Villines, Ch. 452,
Stats. 2009) provided additional protections for a whistleblower
and confidential informant when the State Auditor releases
evidence supporting its findings resulting from the
investigation. The reasoning behind this was that the release
of the supporting evidence itself could be premature at this
stage because of any ensuing administrative or court action that
may result from the investigation. Legal representatives of the
state may not want the evidence itself released until they have
had the chance to review it and determine for themselves what
exposure to liability the state may have or whether or what
action will be taken against responsible parties. This bill
would follow this legislative history of maintaining
confidentiality for whistleblowers and exempt from public
disclosure the identity of a person who files a complaint, as
specified, against the Adjutant General, Assistant Adjutant
General, or any member of the California National Guard.
In order to address concerns that the bill might not
sufficiently protect the confidentiality of a whistleblower's
identity, the author has agreed to amend the bill to delete the
provision permitting the IG to disclose the whistleblower's
identity to the Governor, members of the Legislature, and law
enforcement officers. The following amendment would achieve
this:
Suggested amendment:
On page 4, line 24, after "(2)" delete the rest of that line,
delete lines 25-27, and on line 28, delete "described in
subdivision (a)."
SB 921 (Lieu)
Page 8 of ?
Support : None Known
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2620 (Umberg, 2006) See Background.
AB 1445 (Umberg, 2005) See Background.
SB 37 (Maddy, Ch. 12, Stats. 1993) See Comment 3.
AB 567 (Villines, Ch. 452, Stats. 2009) See Comment 3.
Prior Vote : Senate Committee on Veterans Affairs (Ayes 7, Noes
0)
**************