Cal. Code Regs. Tit. 2, § 61317 - Standards and Procedures

(a) Upon receiving a submission, the DOJ shall review it to determine whether, based on an independent, nonpartisan, and objective analysis of the information provided by the complainant, the submission constitutes a good faith allegation of an improper governmental activity. If the DOJ reasonably concludes that the submission contains sufficient factual information to warrant further investigation, the DOJ shall contract with an independent investigator to determine whether the employee or employees who are the subject of the submission engaged or participated in an improper governmental activity.

(b)

(1) As required by Chapter 6.5 (commencing with section 8543) of Division 1 of Title 2 of the Government Code, in order to ensure the State Auditor's statutory independence, uphold the integrity of the audit and investigative process, prevent interference with ongoing audits and investigations, enable the State Auditor's Office to conduct its work in accordance with applicable audit and investigative standards, and make certain that no person is subject to criminal charges as a result of conducting an investigation or cooperating with the independent investigator, the independent investigator shall not commence any investigation of a submission relating to a pending audit, assessment, or investigation, and shall hold his or her investigation in abeyance until the pending audit, assessment, or investigation is complete. In addition, any time the Pending Matters Liaison notifies the independent investigator that an ongoing investigation relates to a pending audit, assessment, or investigation, the independent investigator shall cease his or her work on the ongoing investigation and shall hold the ongoing investigation in abeyance until the pending audit, assessment, or investigation is complete. Upon completion of the pending audit, assessment, or investigation, as indicated by a published report or closure of the matter, the independent investigator may commence or continue the applicable investigation.

(2) For purposes of this section, "relating to a pending audit, assessment, or investigation" includes, but is not limited to, an allegation arising out of, or substantively connected to, a particular audit, high risk assessment, or investigation, its assigned staff, objectives, scoping, field work, findings, recommendations, deliberative process, report writing or processing, and the application and interpretation of the audit standards applied during the State Auditor's Office's auditing, assessing, or investigating process.

(3) Notwithstanding paragraph (2) of subdivision (b) of this section, to the extent that the submission alleges and the independent investigator determines that there is reasonable cause to believe that an employee is engaged in ongoing criminal activity or fraud, subject to the limitations in Government Code section 8547.5, subdivision (b), the independent investigator may refer the allegation to the appropriate criminal or administrative law enforcement agency in lieu of conducting an investigation of the matter.

(4) Prior to commencing an investigation, the independent investigator shall contact the Pending Matters Liaison and provide the Pending Matters Liaison with the name of each employee who is the subject of the investigation and only enough information regarding the submission for the Pending Matters Liaison to determine whether the submission relates to a pending audit, assessment, or investigation. Any time the Pending Matters Liaison determines that a submission or an ongoing investigation relates to a pending audit, assessment, or investigation, the Pending Matters Liaison shall immediately notify the independent investigator and place a litigation hold on the pending audit, assessment, or investigation that will continue at least until such time as the independent investigator completes his or her investigation. The Pending Matters Liaison shall immediately inform the independent investigator when the pending audit, assessment, or investigation, as indicated by a published report or closure of the matter, is completed. The Pending Matters Liaison shall not disclose the particulars of any communication with the independent investigator to the State Auditor except to communicate the imposition and duration of any applicable litigation hold.

(c) An investigation conducted by an independent investigator shall not preclude the State Auditor's Office from conducting its own workplace investigation of allegations or subjects that are the same or similar to those being investigated by the independent investigator.

(d) Any final report written by an independent investigator shall set forth the allegations contained in the submission, the applicable legal and other criteria the independent investigator relied on to reach his or her conclusions, all of the evidence the independent investigator reviewed, mitigating factors, aggravating factors, and the independent investigator's conclusions as to whether or not the submission has been substantiated and supports a conclusion that the State Auditor's Office or an employee has engaged or participated in an IGA.

(e)

(1) If the independent investigator finds that the facts support a conclusion that it is more likely than not that an employee of the State Auditor's Office has engaged or participated in an improper governmental activity, the independent investigator shall provide by secure means a copy of the independent investigator's written report and all evidence gathered during the investigation to the State Auditor, Chief Deputy State Auditor, Chief Counsel, and Human Resources Manager within 10 business days of finalizing the report.

(2) If the independent investigator finds that the facts support a conclusion that it is more unlikely than likely that an employee of the State Auditor's Office has engaged or participated in an improper governmental activity, the independent investigator shall provide by secure means a copy of the independent investigator's written report and all evidence gathered during the investigation to the State Auditor, the Chief Deputy State Auditor, Chief Counsel, and Human Resources Manager within 10 business days of finalizing the report. The independent investigator and the Department of Justice shall close the investigation, provide all records gathered to the State Auditor, and destroy all copies. Closing an investigation in this manner constitutes final action and no further action or updates are required by the independent investigator or the State Auditor.

(f) Within 60 business days of receiving a final written report from the independent investigator that supports a conclusion that an employee engaged or participated in an improper governmental activity, the State Auditor's Office shall either serve a notice of adverse action pursuant to Government Code section 19574 and implement other recommendations made by the independent investigator, or notify the independent investigator in writing its reasons for not doing so. This notification shall constitute the State Auditor's final action on the matter.

(g) The 60-day time period within which the State Auditor's Office is required to take specified actions after receipt of the independent investigator's final written report does not begin to run until the State Auditor's Office receives the final written report and all evidence gathered by the independent investigator during the investigation. For purposes of this subdivision, "receipt" means that State Auditor's Office's Chief Counsel, Chief of Investigations, or Human Resources Manager take actual possession or delivery of the report.

(h) Except as specifically provided in subdivision (i) of this section, under Government Code section 8547.5, subdivision (b), the identity of the person providing the information that initiated the investigation, or any person providing information in confidence to further an investigation, shall not be disclosed without the express permission of the person providing the information by anyone, including, but not limited to, all of the following:

(1) The independent investigator.

(2) Notwithstanding the definition of the Department of Justice set forth in California Code of Regulations, title 2, section 61305, the Department of Justice and the Employment and Administrative Mandate Section of the Department of Justice.

(3) Any person or entity connected to the alternative whistleblower system.

(4) Any person or entity reviewing submissions or investigating the State Auditor's Office or an employee that relate to an alleged violation of the Act.

(5) Any person receiving information from the independent investigator.

(i) If, in accordance with the terms of this chapter, the independent investigator files a request to file charges before the State Personnel Board pursuant to Government Code section 19583.5 or refers a matter to law enforcement, the independent investigator may disclose the name of the subject employee to the State Personnel Board or the specific law enforcement agency, as applicable.

Notes

Cal. Code Regs. Tit. 2, § 61317

1. New subchapter 2 (sections 61317-61320) and section filed 8-30-2019; operative 10-1-2019 pursuant to Government Code section 11343.4(a). Submitted to OAL for filing and printing only and not subject to OAL review pursuant to Government Code section 8546(g) (Register 2019, No. 35).

Note: Authority cited: Section 8546, Government Code. Reference: Section 8547.5, Government Code.

1. New subchapter 2 (sections 61317-61320) and section filed 8-30-2019; operative 10/1/2019 pursuant to Government Code section 11343.4(a). Submitted to OAL for filing and printing only and not subject to OAL review pursuant to Government Code section 8546(g) (Register 2019, No. 35).