Bill Text: CA SB921 | 2011-2012 | Regular Session | Chaptered
Bill Title: Military Department: Office of the Inspector General:
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2012-09-28 - Chaptered by Secretary of State. Chapter 731, Statutes of 2012. [SB921 Detail]
Download: California-2011-SB921-Chaptered.html
BILL NUMBER: SB 921 CHAPTERED
BILL TEXT
CHAPTER 731
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 2012
APPROVED BY GOVERNOR SEPTEMBER 28, 2012
PASSED THE SENATE AUGUST 31, 2012
PASSED THE ASSEMBLY AUGUST 23, 2012
AMENDED IN ASSEMBLY AUGUST 14, 2012
AMENDED IN ASSEMBLY APRIL 16, 2012
AMENDED IN SENATE AUGUST 17, 2011
AMENDED IN SENATE JULY 1, 2011
AMENDED IN SENATE MAY 11, 2011
AMENDED IN SENATE APRIL 25, 2011
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Senators Lieu and Correa
FEBRUARY 18, 2011
An act to add Sections 55, 56, and 57 to the Military and Veterans
Code, relating to the Military Department, and declaring the urgency
thereof, to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 921, Lieu. Military Department: Office of the Inspector
General: California Military Whistleblower Protection Act.
Existing law establishes in state government the Military
Department, which includes the office of the Adjutant General, the
State Military Reserve, the California Cadet Corps, and the Naval
Militia. There is also, within the Military Department, the inspector
general, an office that inspects, audits, investigates, trains, and
performs various duties necessary to support the mission of the
Military Department.
This bill would establish specified requirements for the position
of California's inspector general, including, among others, a
requirement that the Governor appoint the inspector general. This
bill would specify the duties of the California Military Department
Inspector General, and would require the inspector general to
continue to maintain a toll-free public telephone number and Internet
Web site to receive complaints and allegations. This bill would
authorize the inspector general to investigate specified complaints
and allegations of misconduct upon written request of specified
persons, and would provide that those requests are not a public
record under the California Public Records Act.
This bill would establish the California Military Whistleblower
Protection Act, which would prohibit a person from restricting a
member of the Military Department from making specified
communications to a Member of Congress, the Governor, a Member of the
Legislature, or any state or federal inspector general, or from
taking, or threatening to take, unfavorable personnel actions, or
withholding, or threatening to withhold, favorable personnel actions,
as a reprisal against a member of the Military Department for making
specified communications. This bill would require the California
Military Department Inspector General to take specified actions if a
member of the Military Department makes allegations that a prohibited
personnel action has been taken, or has been threatened to be taken,
as provided.
This bill would require the Military Department to provide one
training per year to the department's civil service employees
regarding the role and responsibility of the California Military
Department Inspector General and their rights under the California
Whistleblower Protection Act, the California Military Whistleblower
Protection Act, and any other relevant state or federal law.
The California Constitution requires that a statute that limits
the right of access to the meetings of public bodies or the writings
of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
This bill would declare that it is to take effect immediately as
an urgency statute.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The Governor is the commander and chief of the state militia.
(b) The Military 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 Military 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 California Military Department 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
Military 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 they can be
candid and honest without reservation in conducting the people's
business.
SEC. 2. Section 55 is added to the Military and Veterans Code, to
read:
55. (a) A person serving in the position of inspector general
shall satisfy all of the following requirements:
(1) Be appointed by the Governor, with consideration of the
recommendation of the Adjutant General and notification to the Senate
Committee on Rules, and shall serve a four-year term from the
effective date of appointment. The inspector general may not be
removed from office during that term, except for good cause. An
inspector general may not serve more than two consecutive terms.
(2) Meet the same qualifications established in this code for the
Assistant Adjutant General.
(3) Be subordinate to the Adjutant General and serve on state
active duty at the grade of O-6 or higher.
(b) (1) The inspector general may not serve as the Adjutant
General or the Assistant Adjutant General for four years from the
date of leaving the position of inspector general.
(2) 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.
(c) The department shall, from the amount annually appropriated to
it for purposes of this office, continue to fund the position of
inspector general.
(d) The inspector general shall have access to all employees and
documents of the department.
(e) The inspector general may receive communications from any
person, including, but not limited to, any member of the department.
(f) The inspector general shall, 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.
(g) The inspector general shall continue to maintain a toll-free
public telephone number and an Internet Web site to receive
complaints and allegations, including, but not limited to, those
described in subdivision (h) or the California Military Whistleblower
Protection Act. 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.
(h) (1) 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, 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.
(2) (A) 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.
(B) 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.
(3) (A) A request described in paragraph (1) is 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.
(B) The inspector general shall not disclose to any person or
entity the identity of a person making a written request or an
allegation or complaint described in paragraph (1), unless the person
making the request, allegation, or complaint has consented to the
disclosure in writing.
(4) (A) When deemed appropriate by the inspector general, the
inspector general may refer to the Chief of the National Guard Bureau
any complaints or allegations described in paragraph (1), any
violations of the Uniform Code of Military Justice, or any violations
of any other state or federal law.
(B) When deemed appropriate by the inspector general, the
inspector general may refer to the State Auditor any complaints or
allegations described in subparagraph (B) of paragraph (1) or any
violation of state or federal law.
(i) If the inspector general receives, or becomes aware of, an
allegation, complaint, or misconduct regarding the Adjutant General
or the Assistant Adjutant General, the inspector general shall
immediately refer the matter to the Chief of the National Guard
Bureau and the Governor for review. The inspector general, by order
of the Governor, shall conduct an investigation regarding the
allegations concerning the Adjutant General or the Assistant Adjutant
General concurrently with any federal investigation where
appropriate. The inspector general shall report the findings to the
Governor under this subdivision.
(j) (1) (A) 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, the Legislature, the Senate Committee on Veterans
Affairs, and the Assembly Committee on Veterans Affairs. The report
shall include, but not be limited to, a description of significant
problems discovered by the office and a summary of investigations
conducted by the office during the previous year. Upon submitting the
report to the Governor, the Legislature, the Senate Committee on
Veterans Affairs, and the Assembly Committee on Veterans Affairs the
report shall be made available to the public and posted on the office'
s Internet Web site.
(B) A report to be submitted pursuant to subparagraph (A) shall be
submitted in compliance with Section 9795 of the Government Code.
(2) Upon the completion of an investigation conducted by the
inspector general pursuant to paragraph (1) of subdivision (h) or
Section 56, he or she 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 Committee on
Veterans Affairs, and the Assembly Committee on Veterans Affairs. 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 Uniform Code of Military Justice 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 office's Internet Web site.
(k) For purposes of this section, all of the following shall
apply:
(1) "Department" means the Military Department.
(2) "Inspector general" means the California Military Department
Inspector General.
(3) "Member of the department" means the Adjutant General, any
person under the command of the Adjutant General, any person employed
by the department, including, but not limited to, any service member
or employee of the office of the Adjutant General, the California
National Guard, the State Military Reserve, the California Cadet
Corps, or the Naval Militia, any person on state active duty, any
person with a state commission, or any civil service or part-time
employee of the department.
(4) "Office" means the Office of the California Military
Department Inspector General.
SEC. 3. Section 56 is added to the Military and Veterans Code, to
read:
56. (a) This section shall be known, and may be cited, as the
"California Military Whistleblower Protection Act."
(b) Notwithstanding any other law, a person shall not do any of
the following:
(1) (A) Restrict 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.
(B) Subparagraph (A) shall not apply to a communication that is
unlawful.
(2) Take, or threaten to take, an unfavorable personnel action, or
withhold, or threaten 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:
(A) A Member of Congress.
(B) The Governor.
(C) A Member of the Legislature.
(D) The inspector general.
(E) The State Auditor.
(F) A federal inspector general or any other inspector general
appointed under the Inspector General Act of 1978.
(G) Any member of a Department of Defense audit, inspection,
investigation, or law enforcement organization.
(H) Any local, state, or federal law enforcement agency.
(I) Any person or organization in the chain of command of the
department.
(J) Any other person or organization designated pursuant to
regulation or any other established administrative procedures for
such communications.
(c) Notwithstanding any other law, if a member of the department
submits to an inspector general an allegation that a personnel action
prohibited by paragraph (2) of subdivision (b) has been taken or has
been threatened to be taken against the member of the department,
the inspector general shall take action as provided by subdivision
(d).
(d) An inspector general receiving an allegation pursuant to
subdivision (c) shall do all of the following:
(1) Expeditiously determine whether there is sufficient evidence,
in accordance with federal regulations governing federal inspectors
general, to warrant an investigation of the allegation.
(2) Conduct a separate investigation of the information that the
member making the allegation believes constitutes evidence of
wrongdoing under both of the following circumstances:
(A) There has not been a previous investigation.
(B) 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.
(e) 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 personnel action
prohibited by paragraph (2) of subdivision (b), the inspector general
shall refer the allegation to the Chief of the National Guard Bureau
and the Governor.
(f) (1) After completion of an investigation 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.
(2) 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.
(3) 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.
(4) 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.
(g) Nothing in this article is intended to supersede the rights,
benefits, processes, and procedures already afforded to members of
the department under existing law.
(h) For purposes of this section, all of the following shall
apply:
(1) A "communication" means any communication or report in which a
member of the department complains of, or discloses information that
the member of the department reasonably believes constitutes
evidence of, any of the following:
(A) A violation of law, including, but not limited to,
regulations, the Uniform Code of Military Justice, 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.
(2) "Department" means the Military Department.
(3) "Inspector general" means the California Military Department
Inspector General.
(4) "Member of the department" has the same meaning as defined in
Section 55.
(5) "Office" means the Office of the California Military
Department Inspector General.
SEC. 4. Section 57 is added to the Military and Veterans Code, to
read:
57. The Military Department shall provide, at a minimum, one
training per year to the department's civil service employees
regarding the role and responsibility of the California Military
Department Inspector General and their rights under the California
Military Whistleblower Protection Act, the federal Military
Whistleblower Protection Act, and any other relevant state or federal
law.
SEC. 5. The Legislature finds and declares that Section 2 of this
act, which adds Section 55 to the Military and Veterans Code, 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:
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.
SEC. 6. 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. The facts constituting the necessity are:
In order to ensure that Military Department personnel who are
employed in state active duty, and thus are not under federal
military oversight, as well as those subject to the control of these
personnel, receive due process in the consideration of complaints and
appeals of disciplinary actions, it is necessary for this act to
take effect immediately.
