BILL ANALYSIS �
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UNFINISHED BUSINESS
Bill No: SB 921
Author: Lieu (D) and Correa (D)
Amended: 8/14/12
Vote: 27 - Urgency
SENATE VETERANS AFFAIRS COMMITTEE : 7-0, 06/14/11
AYES: Correa, Cannella, Berryhill, Negrete McLeod, Rubio,
Runner, Lieu
NO VOTE RECORDED: Calderon
SENATE JUDICIARY COMMITTEE : 4-0, 6/28/11
AYES: Evans, Blakeslee, Corbett, Leno
NO VOTE RECORDED: Harman
SENATE APPROPRIATIONS COMMITTEE : 9-0, 8/25/11
AYES: Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley,
Price, Runner, Steinberg
SENATE FLOOR : 33-0, 8/31/11
AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon,
Cannella, Corbett, Correa, DeSaulnier, Dutton, Emmerson,
Evans, Gaines, Hancock, Hernandez, Kehoe, La Malfa, Leno,
Lieu, Lowenthal, Padilla, Pavley, Rubio, Runner,
Simitian, Steinberg, Strickland, Vargas, Walters, Wolk,
Wright, Wyland, Yee
NO VOTE RECORDED: De Le�n, Fuller, Harman, Huff, Liu,
Negrete McLeod, Price
ASSEMBLY FLOOR : 79-0, 8/23/12 - See last page for vote
SUBJECT : Military Department: Office of the Inspector
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General:
California Military Whistleblower Act
SOURCE : Author
DIGEST : This bill creates a statutory requirement that
there be a California Military Department Inspector General
(Inspector General) and specifies many of his/her
responsibilities.
Assembly Amendments make substantive changes to the Senate
version of the bill keeping the intent the same, establish
the California Military Whistleblower Act, and make other
clarifying and technical changes.
ANALYSIS :
This bill:
1. Makes the following findings and declarations:
A. The Governor is the commander and chief of the
state militia.
B. The Military Department (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 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 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 Department should be free to communicate and
report waste, fraud, abuse of authority, violations
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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.
F. Section 2 of the bill, 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:
(1) 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.
G. 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.
2. Requires that the Inspector General shall satisfy all of
the following requirements:
A. Be appointed by the Governor, with consideration
of the recommendation of the Adjutant General,
notification to the Senate Rules Committee and shall
serve at the discretion of the Governor.
B. Serve a four-year term and not more than two
consecutive terms.
C. Meet the same qualifications established in this
code for the Assistant Adjutant General.
D. Be subordinate to the Adjutant General and serve
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on state active duty at the grade of O-6 or higher.
E. Not be removed except for good cause.
3. Prohibits any person from serving as the Adjutant
General or the Assistant Adjutant General for four years
from the date of leaving the position of Inspector
General.
4. States that a commissioned officer on state active duty
appointed to the position of inspector general who,
immediately prior to that duty, held a permanent state
active duty position shall remain on state active duty
upon vacating the Inspector General position.
5. Requires the Department to continue to fund the position
of Inspector General.
6. Mandates that the Inspector General shall have access to
all employees and documents of the Department.
7. Directs that the Inspector General may receive
communications from any person, including, but not
limited to, any member of the Department.
8. Requires the Inspector General to, 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.
9. Mandates that the Inspector General shall continue to
maintain a toll-free public telephone number and an
Internet Web site to receive complaints and allegations.
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.
10.States that 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
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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
(UCMJ), 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.
C. States that for all written requests submitted by
a Member of the Legislature, the Inspector General
shall respond in writing with his or her findings.
The response shall contain only that information that
may be lawfully disclosed, and, if a complaint or
allegation is at issue, the response shall contain,
at a minimum, information regarding whether the
complaint or allegation was unfounded or sustained.
11.Specifies that 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:
A. A request described in the preceding paragraph is
deemed 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.
12.Prohibits the Inspector General from disclosing to any
person or entity the identity of a person making a
written request or an allegation or complaint, unless
the person making the request, allegation, or complaint
has consented to the disclosure in writing.
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13.Authorizes the Inspector General to refer to the Chief
of the National Guard Bureau any complaints or
allegations as specified, including any violations of
the UCMJ, or any violations of any other state or
federal law.
14.Permits the Inspector General to refer to the State
Auditor any complaints, allegations, or violations of
state or federal law.
15.Requires the Inspector General, in the event of a
complaint, or allegation of misconduct regarding the
Adjutant General or the Assistant Adjutant General, to
immediately refer the matter to the Chief of the
National Guard Bureau and the Governor for review.
16.Directs the Inspector General to conduct an
investigation regarding the allegations concerning the
Adjutant General or the Assistant Adjutant General
concurrently with any federal investigation where
appropriate and report the findings to the Governor.
17.Mandates that 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 and specifies the contents of the report.
18.States that the Inspector General shall also prepare and
issue on a quarterly basis a public report that includes
all investigations completed in the previous quarter.
The Inspector General shall submit a copy of the
quarterly report to the Legislature, the Senate Veterans
Affairs Committee, and the Assembly Veterans Affairs
Committee. The Inspector General shall have the
discretion to redact or otherwise protect the names of
individuals, specific locations, or other facts that, if
not redacted, might hinder prosecution under state or
federal law or the UCMJ related to the investigation, or
where disclosure of the information is otherwise
prohibited by law, and to decline to produce any of the
underlying materials. In a case where allegations were
deemed to be unfounded, all applicable identifying
information shall be redacted. Each quarterly report
shall be made available to the public and posted on the
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office's Internet Web site.
19.Entitles a specified new section of code the "California
Military Whistleblower Protection Act."
20.Prohibits anyone from the following:
A. Restricting 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. This prohibition does
not apply to a communication that is unlawful.
B. Taking, or threatening to take, an unfavorable
personnel action, or withholding, or threatening 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:
(1) A Member of Congress.
(2) The Governor.
(3) A Member of the Legislature.
(4) The Inspector General.
(5) The State Auditor.
(6) A federal Inspector General or any other
Inspector General appointed under the Inspector
General Act of 1978.
(7) Any member of a Department of Defense
audit, inspection, investigation, or law
enforcement organization.
(8) Any local, state, or federal law
enforcement agency.
(9) Any person or organization in the chain of
command of the Department.
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(10) Any other person or organization
designated pursuant to regulation or any other
established administrative procedures for such
communications.
21.Requires the Inspector General to investigate complaints
alleging the foregoing.
22.Directs the Inspector General receiving an allegation to
do all of the following:
A. Expeditiously determine whether there is
sufficient evidence, in accordance with federal
regulations governing federal inspectors general, to
warrant an investigation of the allegation.
B. Conduct a separate investigation of the
information that the member making the allegation
believes constitutes evidence of wrongdoing under
both of the following circumstances:
(1) There has not been a previous investigation.
(2) 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.
23.Specifies that 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 prohibited personnel
action, the Inspector General shall refer the allegation
to the Chief of the National Guard Bureau and the
Governor.
24.States that 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
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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:
A. 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.
25.Mandates that 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.
26.Directs that 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.
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27.States that nothing in this article is intended to
supersede the rights, benefits, processes, and
procedures already afforded to members of the Department
under existing law.
28.Requires the Department to provide, at a minimum, one
training per year to the Department's civil service
employees regarding the role and responsibility of the
Inspector General and their rights under the California
Whistleblower Protection Act, the Military Whistleblower
Protection Act, and any other relevant state or federal
law.
Comments
Military Department (Department) employees who wish to
report waste, fraud, abuse, or otherwise "blow the whistle"
have several avenues to do so under existing law and they
are protected from reprisal when making such allegations.
The proper avenue for complaint varies due to the multiple
statuses which are possible for Department employees that
may be subjects of a complaint and the unique nature of the
Department. The proper system of justice/discipline also
varies. In general, military members are subject to the
UCMJ, while civilians are subject to progressive discipline
and adverse personnel action.
As set forth above, there is federal law mandating a
Department of Defense Inspector General (DoDIG). Though
there is no statutory requirement to do so, the Military
Department has created the Inspector General to handle
complaints about certain status employees whose conduct
would be outside the purview of the DoDIG.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Assembly Appropriations Committee:
Minor and absorbable costs to the extent the prescriptive
requirements of this bill result in additional workload
for the existing, yet uncodified Inspector General.
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Minor and absorbable costs for the required training
regarding the Inspector General and rights under the
proposed California Military Whistleblowers Act. The
Military Department indicates any costs for additional
training are absorbable.
ASSEMBLY FLOOR : 79-0, 8/23/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani,
Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell,
Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Lara,
Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller,
Mitchell, Monning, Morrell, Nestande, Nielsen, Norby,
Olsen, Pan, Perea, V. Manuel P�rez, Portantino, Silva,
Skinner, Smyth, Solorio, Swanson, Torres, Valadao,
Wagner, Wieckowski, Williams, Yamada, John A. P�rez
NO VOTE RECORDED: Roger Hern�ndez
RM:m 8/24/12 Senate Floor Analyses
SUPPORT/OPPOSITION: NONE RECEIVED
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