BILL ANALYSIS Ó
SB 921
Page 1
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