BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 921
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          Date of Hearing:   April 24, 2012

                       ASSEMBLY COMMITTEE ON VETERANS AFFAIRS
                                 Paul J. Cook, Chair
                 SB 921 (Lieu, Correa) - As Amended:  April 16, 2012

           SENATE VOTE  :   33-0
           
          SUBJECT  :   Military Department: Office of the Inspector General: 
          California Military Whistleblower Protection Act.

           SUMMARY  :   Creates a statutory requirement that there be a 
          California Military Department Inspector General (Inspector 
          General) and specifies many of his or her responsibilities.  
           This bill contains an urgency provision  .  Specifically,  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 of law, 
                    or threats to the public health and safety without 
                    fear of retribution.

                  e.        Public servants best serve the citizenry when 








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                    they can be candid and honest without reservation in 
                    conducting the people's business.

                  f.        That 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:

                        i.             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 position of Inspector General shall 
               satisfy all of the following requirements:

                  a.        Be appointed by the Governor, with 
                    consideration of the recommendation of the Adjutant 
                    General, and shall serve at the discretion of the 
                    Governor;

                  b.        Meet the same qualifications established in 
                    this code for the Assistant Adjutant General; and

                  c.        Be subordinate to the Adjutant General and 
                    serve on state active duty at the grade of O-6 or 
                    higher.

             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.   Requires the Department to continue to fund the position 
               of Inspector General.








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             5.   Mandates that the Inspector General shall have access to 
               all employees and documents of the Department.

             6.   Directs that the Inspector General may receive 
               communications from any person, including, but not limited 
               to, any member of the Department.

             7.   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.

             8.   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.

             9.   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 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.

             10.  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 








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               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.

             11.  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.

             12.  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.

             13.  Permits the Inspector General to refer to the State 
               Auditor any complaints, allegations, or violations of state 
               or federal law.

             14.  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. 

             15.  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.

             16.  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.  

             17.  Entitles a specified new section of code the "California 
               Military Whistleblower Protection Act."

             18.  Prohibits anyone from the following:








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                  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:

                        i.             A Member of Congress.
                        ii.            The Governor.
                        iii.           A Member of the Legislature.
                        iv.            The Inspector General.
                        v.             The State Auditor.
                        vi.            A federal Inspector General or any 
                         other Inspector General appointed under the 
                         Inspector General Act of 1978.
                        vii.           Any member of a Department of 
                         Defense audit, inspection, investigation, or law 
                         enforcement organization.
                        viii.          Any local, state, or federal law 
                         enforcement agency.
                        ix.            Any person or organization in the 
                         chain of command of the Department.
                        x.             Any other person or organization 
                         designated pursuant to regulation or any other 
                         established administrative procedures for such 
                         communications.

             19.  Requires the Inspector General to investigate complaints 
               alleging the foregoing.

             20.  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.









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                  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:

                        i.             There has not been a previous 
                         investigation.
                        ii.            There has been a previous 
                         investigation but the Inspector General 
                         determines that the previous investigation was 
                         biased or otherwise inadequate.
                        iii.           Upon determining that an 
                         investigation of an allegation is warranted, 
                         expeditiously investigate the allegation.

             21.  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.

             22.  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 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.

             23.  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 








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               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.

             24.  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.

             25.  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.

             26.  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 CAWPA, the 
               Military Whistleblower Protection Act, and any other 
               relevant state or federal law.

           EXISTING LAW  : 

             1.   The Inspector General Act of 1978 (IG Act) established a 
               framework for federal inspectors general. 

             2.   The Department of Defense (DoD) Inspector General (DoD 
               IG) was established in 1982. According to the DoD IG, it "? 








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               combats fraud, waste and abuse in the Department of Defense 
               by conducting audits and investigations." 

             3.   DoD IG is authorized "to have access to all records, 
               reports, audits, reviews, documents, papers, 
               recommendations, or other material available to Żany DoD 
               component] which relate to programs and operations Żof the 
               Department of Defense]."

             4.   DoD IG may issue subpoenas for the production of 
               documents, reports, answers, records, accounts, papers, and 
               other data or documentary evidence necessary in the 
               performance of the functions assigned to DoD IG by the IG 
               Act.  Additionally, DoD IG has been given the authority to 
               require testimony from any witness who is not currently a 
               federal  employee.

             5.   Pursuant to the federal Whistleblower Protection Act 
               (USWPA), a federal employee authorized to take, direct 
               others to take, recommend or approve any personnel action 
               may not take, fail to take, or threaten to take any 
               personnel action against an employee because of protected 
               whistleblowing.

             6.   The DoD Office of Deputy Inspector General for 
               Administrative Investigations Directorate for Whistleblower 
               Reprisal Investigations (WRI) fulfills the statutory 
               requirements to conduct and oversee allegations of 
               whistleblower reprisal made by DoD Military Service 
               members.

             7.   The California Whistleblower Protection Act (CAWPA) 
               authorizes the California 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. 

                  a)        After the State Auditor receives a complaint, 
                    any investigation resulting from the complaint is 
                    confidential.  Information about the investigation 
                    will not be released until a report is issued by the 
                    State Auditor.









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                  b)        State employees who file a complaint are 
                    entitled to protection against retaliation by their 
                    employers for filing the complaint.

           FISCAL EFFECT  :   Unknown.  There is an existing state IG but the 
          office is not statutorily mandated.  Office is also currently in 
          the chain of command.

           COMMENTS  :   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 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.  

          The bill imposes a statutory requirement that there be an 
          Inspector General and specifies many of his or her 
          responsibilities.  Though the Department has shown no intent to 
          eliminate the position, if the bill passes, the Inspector 
          General position will no longer be subject to elimination by the 
          Department; it will be mandated through statute.  The Inspector 
          General would remain in the chain of command at the Department.  
          However, as a safeguard against reduced independence, the 
          Inspector General is a direct appointee of the Governor.  In 
          addition, the Inspector General is prohibited from assuming the 
          position of Adjutant General or Assistant Adjutant General for 
          four years from the date of leaving the position of Inspector 
          General.

          The bill tries to mirror the multiple roles of the DoDIG in the 
          Inspector General to the extent possible (investigation, 
          education, training, assistance, etc.).  The bill does not alter 
          the applicability of the civil service system and UCMJ to 
          personnel; UCMJ continues to apply to military personnel while 
          the civil service system and State Personnel Board procedures 








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          apply to non-military personnel.

          In the approximately eighteen months past there have been a 
          substantial number of allegations of misconduct at the 
          Department, allegations raised in multiple venues, including via 
          the press, to legislators and staff, through formal complaints, 
          and through whistleblower allegations, among others.  These 
          allegations raised serious concerns about the integrity of the 
          Department.  Some of these allegations involved personnel at the 
          highest levels of the Department.  A new Adjutant General has 
          come aboard at the Department and instituted many changes and 
          reforms with some of his top goals to restore any damage 
          sustained to the reputation of the Department and redress 
          previous missteps to the extent possible.  

          The bill is at least partially in response to the misconduct 
          allegations raised in the previous paragraph.  As set forth 
          above, some of the allegations causing the greatest concern 
          involved personnel at the highest levels of the Department.  The 
          bill directly addresses this particular situation, specifying a 
          process for the Inspector General to use when allegations of 
          misconduct involve the Adjutant General or the Assistant 
          Adjutant General.

          The bill reiterates the protections for those who make 
          whistleblower complaints.  In summary, personnel are permitted 
          to make lawful communications when making whistleblower 
          complaints and are protected from retaliation for doing so.

          The bill also creates several reporting requirements so that 
          complainants, the legislature and in some circumstances to the 
          Governor are informed about the work of the Inspector General.  
          The bill balances the need for reports on complaints with the 
          privacy rights of those subject to investigation and those 
          making complaints.

          Finally, the bill imposes a new training requirement on the 
          Department.  It must educate civil service members of the 
          Department annually regarding the role and responsibility of the 
                Inspector General and the members' rights under the CAWPA, the 
          Military Whistleblower Protection Act, and any other relevant 
          state or federal law.

           HISTORY  :









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           Prior Legislation  :

          AB 2620 (Umberg, 2006)

          AB 1445 (Umberg, 2005)

          SB 37 (Maddy, Ch. 12, Stats. 1993).
            
          AB 567 (Villines, Ch. 452, Stats. 2009) 

           Prior Vote  :  Senate Committee on Veterans Affairs (Ayes 7, Noes 
          0)

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          None on file.
           
            Opposition 
           
          None on file.

           Analysis Prepared by  :    John Spangler / V. A. / (916) 319-3550