BILL NUMBER: SB 1336	AMENDED
	BILL TEXT

	AMENDED IN SENATE  MAY 8, 2012
	AMENDED IN SENATE  APRIL 18, 2012

INTRODUCED BY   Senator Yee

                        FEBRUARY 24, 2012

   An act to repeal and add Section 89574 of the Education Code, and
to amend Sections 8547.7 and 53087.6 of the Government Code, relating
to investigations.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 1336, as amended, Yee. Improper governmental activities:
investigations: confidentiality.
   (1) The California Whistleblower Protection Act establishes
procedures under which a state employee may report improper
governmental activities or make a protected disclosure to the State
Auditor and prohibits retaliation or reprisal against a state
employee for these acts. The act requires the State Auditor to
investigate and report on improper governmental activities, as
defined. The act requires the State Auditor to keep confidential
every investigation, except that the State Auditor may release any
findings or evidence supporting any findings resulting from an
investigation and issue a public report of an investigation that has
substantiated an improper governmental activity. The act requires the
report to keep confidential the identity of the employee or
employees involved.
   This bill would instead require the State Auditor to release any
findings resulting from an investigation conducted pursuant to this
act that  has   have  been substantiated
 and to release   ,  information regarding
any action taken by any agency or authority to which the results of
the investigation have been reported  , and any reports on
corrective action from the involved agency  , as specified. 
The bill would require the name and title of the person found
responsible for improper governmental   activity and any
discipline imposed by the involved agency or other authority, as
specified, to be disclosed. 
   (2) Existing law authorizes a city, county, or city and county
auditor or controller to maintain a whistleblower hotline to receive
calls from persons who have information regarding fraud, waste, or
abuse by local government employees. Existing law requires any
investigation conducted pursuant to this authorization to be kept
confidential, except to issue any report of an investigation that has
been substantiated or release any findings resulting from a
completed investigation, as specified.
   This bill would instead require any investigative audit to be kept
confidential, except to release any findings resulting from an
investigative audit conducted pursuant to this authorization that
 has   have  been substantiated and
 to release information regarding any action taken by any
agency to which the results of the audit have been reported 
 any corrective actions recommended to prevent the continuation
or recurrence of the activity  , as specified.  The bill
would require the name and title of the person found responsible for
improper governmental activity, any discipline or any other penalty
imposed by the employer agency or other authority, and any corrective
action taken to prevent the continuation or recurrence of the
activity, as specified, to be disclosed. 
   (3) The California State University Investigation of Reported
Improper Governmental Activities Act establishes a procedure for the
investigation of written complaints submitted to a designated
administrator of the California State University by employees of, or
applicants for employment at, the university. The act requires every
investigative audit conducted pursuant to it to be kept confidential,
except that the California State University may release any findings
resulting from the investigation, as specified, and issue a report
of an investigation that has substantiated an allegation made by the
complainant. The act requires the report to keep confidential the
identity of the individual or individuals involved.
   This bill would instead require the California State University to
release any findings resulting from an investigative audit conducted
pursuant to this act that  has   have been
substantiated and  to release any action taken by the
university or any other agency to which the results of the
investigative audit have been reported   any corrective
actions recommended  , as specified.  The bill would 
 require the name and title of the person found responsible for
improper governmental activity and any discipline imposed by the
university or other agency, as specified, to be disclosed. 
   (4) The California Constitution requires that a statute, court
rule, or other authority adopted after November 4, 2004, that limits
the public's right of access be adopted with findings demonstrating
the interest protected by the limitation and the need for protecting
that interest.
   The bill would, with respect to this constitutional provision,
express findings and declarations of the Legislature regarding the
individual privacy interests that are protected under the bill.
   Vote: majority. 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) This bill imposes a limitation on the public's right of access
to the writings of public officials and public agencies within the
meaning of Section 3 of Article 1 of the California Constitution.
Pursuant to paragraph (2) of subdivision (b) of Section 3 of Article
1 of the California Constitution, the Legislature makes the findings
set forth in this section in order to demonstrate the privacy
interest protected by this limitation and the need for protecting
that privacy interest.
   (b) Investigations of improper governmental activities, and the
steps taken to correct those improper activities upon due
investigation, rely crucially on privacy protections for the original
complainant, whether or not reporting through organized
whistleblower programs, for the witnesses interviewed in the course
of the investigation, and for the persons cleared of any suspicion of
wrongdoing as a consequence of the investigation. Without these
protections, knowledgeable and conscientious persons aware of
improper activities will be far less likely to come forward with
complaints, essential witnesses will be far less likely to cooperate
in the investigation, and innocent public servants will be unjustly
injured by the disclosure of having been the subject of an
investigation of alleged wrongdoing. Improper governmental activities
will persist, unreported, uninvestigated, and uncorrected.
   (c) In order to protect the identities and other privacy interests
of whistleblowers, witnesses, and innocent public servants while
keeping the public aware of what complaints have been received, what
resulting investigations have determined, which, if any, persons have
been found responsible for improper activities, what, if any,
discipline has been imposed, and what, if any, steps are being or
have been taken to prevent recurrence of the improprieties, the
confidentiality provisions of this bill are determined to be
necessary.
  SEC. 2.  Section 89574 of the Education Code is repealed.
  SEC. 3.  Section 89574 is added to the Education Code, to read:
   89574.  Any investigative audit undertaken under this article
shall be kept confidential, except that the California State
University shall release findings resulting from an investigative
audit conducted pursuant to this article that  has 
 have  been substantiated  and information,
including the identity of the subject of the audit, regarding any
action taken by the state university or other agency to which the
results of the investigative audit have been reported  
and any corrective actions recommended, including, but not limited
to, discipline or any other penalty, to prevent the continuation or
recurrence of the activity. Upon exhaustion of any administrative
appeal of the university employer, the name and title of the person
found responsible for improper governmental activity, beyond an
isolated, minor incident involving no injury to fellow employees or
other persons, as well as any discipline imposed by the university or
other agency as a consequence of the improper governmental activity,
shall be disclosed  . A release of findings or information
shall keep confidential the identity of the person providing the
information that initiated the investigative audit and the identity
of any witness interviewed in the investigation, unless the person or
witness provides written permission to have his or her identity
publicly disclosed.
  SEC. 4.  Section 8547.7 of the Government Code is amended to read:
   8547.7.  (a) If, after investigating an allegation, the State
Auditor finds that a state agency or employee may have engaged or
participated in an improper governmental activity, he or she shall
prepare an investigative report and send a copy of that report to the
head of the agency involved and to the head of any other agency that
has direct oversight over that involved agency. The investigative
report  may   shall  include  the
State Auditor's recommended actions   any actions
recommended by the State Auditor, including, but not limited to,
discipline or any other penalty,  to prevent the continuation or
recurrence of the activity. If appropriate, the State Auditor shall
report this information to the Attorney General, the policy
committees of the Senate and Assembly having jurisdiction over the
subject involved, and to any other authority that the State Auditor
determines appropriate. Subject to the limitations of Section 8547.5,
the State Auditor may provide to the involved agency any evidence
gathered during the investigation that, in the judgment of the State
Auditor, is necessary to support any of the recommendations. Within
60 days of receiving the State Auditor's investigative report, the
involved agency shall report to the State Auditor any actions that it
has taken or that it intends to take to implement the
recommendations. The agency shall file subsequent reports on a
monthly basis until final action has been taken.
   (b) The State Auditor shall not have any enforcement power. In any
case in which the State Auditor finds that a state agency or
employee may have engaged in an improper governmental activity, the
State Auditor may provide the finding, and any evidence supporting
the finding, subject to the limitations of Section 8547.5, to a
criminal law enforcement agency, an administrative law enforcement
agency, or a licensing agency that has authority to investigate the
matter.
   (c)  Every investigation shall be kept confidential, except that
the State Auditor shall release findings resulting from an
investigation conducted pursuant to this article that  has
  have  been substantiated  and 
 ,  information  , including the identity of the
subject of the audit,  regarding any action taken by any
agency or authority to which the results of the investigation have
been reported  , and any reports on corrective action from the
involved agency required by subdivision (a). Upon exhaustion of any
administrative appeal of the agency employer, the name and title of
the person found responsible for improper governmental activity,
beyond an isolated, minor incident involving no injury to fellow
employees or other persons, as well as any discipline imposed by the
involved agency or other authority as a consequence of the improper
governmental activity, shall be disclosed  . A release of
findings or information shall keep confidential the identity of the
person providing the information that initiated the investigation and
any witness interviewed in the investigation, unless the person or
witness provides written permission to have his or her identity
publicly disclosed.
   (d) This section does not limit any authority conferred upon the
Attorney General or any other department or agency of government to
investigate any matter.
  SEC. 5.  Section 53087.6 of the Government Code is amended to read:

   53087.6.  (a) (1) A city, county, or city and county auditor or
controller who is elected to office may maintain a whistleblower
hotline to receive calls from persons who have information regarding
fraud, waste, or abuse by local government employees.
   (2) A city, county, or city and county auditor or controller 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, shall obtain approval of that legislative body or the
government agency, as the case may be, prior to establishing the
whistleblower hotline.
   (b) The auditor or controller may refer calls received on the
whistleblower hotline to the appropriate government authority for
review and possible investigation.
   (c) During the initial review of a call received pursuant to
subdivision (a), the auditor or controller, or other appropriate
governmental agency, shall hold in confidence information disclosed
through the whistleblower hotline, including the identity of the
caller disclosing the information and the parties identified by the
caller.
   (d) A call made to the whistleblower hotline pursuant to
subdivision (a), or its referral to an appropriate agency under
subdivision (b), may not be the sole basis for a time period under a
statute of limitation to commence. This section does not change
existing law relating to statutes of limitation.
   (e) (1) Upon receiving specific information that an employee or
local government has engaged in an improper government activity, as
defined by paragraph (2) of subdivision (f), a city or county auditor
or controller may conduct an investigative audit of the matter. The
identity of the person providing the information that initiated the
investigative audit shall not be disclosed without the written
permission of that person, unless the disclosure is to a law
enforcement agency that is conducting a criminal investigation. If
the specific information is in regard to improper government activity
that occurred under the jurisdiction of another city, county, or
city and county, the information shall be forwarded to the
appropriate auditor or controller for that city, county, or city and
county.
   (2) Any investigative audit conducted pursuant to this subdivision
shall be kept confidential, except the authority conducting the
investigative audit shall release findings resulting from an
investigative audit conducted pursuant to this subdivision that
 has   have  been substantiated and
 information, including the identity of the subject of the
audit, regarding any action taken by any other agency to which the
results of the audit have been reported   any corrective
actions recommended, including, but not limited to,  
discipline or any other penalty, to prevent the continuation or
recurrence of the activity. Upon exhaustion of any administrative
appeal of the agency employer, the name and title of the person found
responsible for improper governmental activity, beyond an isolated,
minor incident involving no injury to fellow employees or other
persons, any discipline or any other penalty imposed by the employer
agency or other authority as a consequence of the improper
governmental activity, and any corrective action taken to prevent the
continuation or recurrence of the activity, shall be disclosed 
. A release of findings or information shall keep confidential the
identity of the person providing the information that initiated the
investigative audit and the identity of any witness interviewed in
the investigation, unless the person or witness provides written
permission to have his or her identity publicly disclosed.
   (3) Notwithstanding paragraph (2), the auditor or controller may
provide a copy of a substantiated audit report that includes the
identities of the subject employee or employees and other pertinent
information concerning the investigation to the appropriate
appointing authority for disciplinary purposes. The substantiated
audit report and any subsequent investigatory materials or
information are subject to the confidentiality provisions of
applicable state and federal statutes, rules, and regulations.
   (f) (1) For purposes of this section, "employee" means 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.
   (2) For purposes of this section, "fraud, waste, or abuse" means
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.