BILL NUMBER: SB 1336 INTRODUCED
BILL TEXT
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 introduced, 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 been substantiated, to release information regarding any
action taken by any agency or authority to which the results of the
investigation have been reported, and to issue a report of any
investigation that has not been substantiated, as specified.
(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
been substantiated, to release information regarding any action
taken by any agency to which the results of the audit have been
reported, and to issue a report of any investigative audit that has
not been substantiated, as specified.
(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 been substantiated, to release any
action taken by the university or any other agency to which the
results of the investigative audit have been reported, and to issue a
report of any investigative audit that has not been substantiated,
as specified.
(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, what, if any, steps are being or have
been taken to prevent recurrence of the improprieties, and what
complaints have been found unsubstantiated, the confidentiality
provisions of this bill are determined to be necessary.
SEC. 2. Section 89574 of the Education Code is repealed.
89574. (a) Notwithstanding Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code, every
investigative audit undertaken under this article shall be kept
confidential, except that the California State University may issue
any report of an investigation that has substantiated an allegation
made by the complainant, keeping confidential the identity of the
individual or individuals involved, or release any findings resulting
from an investigation conducted pursuant to Section 89045 that the
trustees deem necessary to serve the interests of the state.
(b) This article shall not be construed to limit any authority
conferred by law upon the Attorney General or any other department or
agency of government to investigate any matter.
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 do the following:
(a) Release findings resulting from an investigative audit
conducted pursuant to this article that has been substantiated and
information regarding any action taken by the state university or
other agency to which the results of the investigative audit have
been reported. A release of findings or information shall keep
confidential the identity of the person providing the information
that initiated the investigative audit, unless the person provides
written permission to have his or her identity publicly disclosed,
and the identity of any witness interviewed in the investigation who
has not been publicly identified as a witness.
(b) Issue a report of any investigative audit that has not been
substantiated, keeping confidential the identity of any person
providing the information that initiated the investigative audit,
unless the person provides written permission to have his or her
identity publicly disclosed, any witness interviewed in the
investigation who has not been publicly identified as a witness, and
any person investigated.
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 include the State Auditor's recommended actions 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) The State Auditor shall keep confidential every investigation,
including, but not limited to, all investigative files and work
product, except that the State Auditor, whenever he or she determines
it necessary to serve the interests of the state, and subject to the
limitations of Section 8547.5, may issue a public report of an
investigation that has substantiated an improper governmental
activity, keeping confidential the identity of the employee or
employees involved. In addition, subject to the limitations of
Section 8547.5, the State Auditor may release any findings or
evidence supporting any findings resulting from an investigation
conducted pursuant to this article whenever the State Auditor
determines it necessary to serve the interests of the state.
(c) Every investigation shall be kept confidential, except that
the State Auditor shall do the following:
(1) Release findings resulting from an investigation conducted
pursuant to this article that has been substantiated and information
regarding any action taken by any agency or authority to which the
results of the investigation have been reported. 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 who has not been
publicly identified as a witness.
(2) Issue a report of any investigation that has not been
substantiated, keeping confidential the identity of any person
providing the information that initiated the investigation, any
witness interviewed in the investigation who has not been publicly
identified as a witness, and any person investigated.
(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 to issue any report of an
investigation that has been substantiated, or to release any findings
resulting from a completed investigation that are deemed necessary
to serve the interests of the public. In any event, the identity of
the individual or individuals reporting the improper government
activity, and the subject employee or employees shall be kept
confidential.
(2) Any investigative audit conducted pursuant to this subdivision
shall be kept confidential, except the authority conducting the
investigative audit shall do the following:
(A) Release findings resulting from an investigative audit
conducted pursuant to this subdivision that has been substantiated
and information regarding any action taken by any other agency to
which the results of the audit have been reported. A release of
findings or information shall keep confidential the identity of the
person providing the information that initiated the investigative
audit, unless the person provides written permission to have his or
her identity publicly disclosed, and the identity of any witness
interviewed in the investigation who has not been publicly identified
as a witness.
(B) Issue a report of any investigative audit that has not been
substantiated, keeping confidential the identity of any person
providing the information that initiated the investigative audit,
unless the person provides written permission to have his or her
identity publicly disclosed, any witness interviewed in the
investigation who has not been publicly identified as a witness, and
any person investigated.
(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, any subsequent investigatory materials or information,
and the disposition of any resulting disciplinary proceedings are
subject to the confidentiality provisions of applicable local, 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.