08 LC 38
0627ER
Senate
Bill 537
By:
Senator Rogers of the 21st
AS
PASSED SENATE
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 12 of Title 45 of the Official Code of Georgia Annotated, relating
to public officers and employees, so as to establish the Office of State
Inspector General; to provide for definitions; to provide for duties; to provide
certain powers; to provide procedures for the application of the duties and
powers of such office; to provide a duty to report certain actions; to provide
for records; to provide for procedures regarding such records; to provide for an
automatic repeal; to provide for related matters; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
12 of Title 45 of the Official Code of Georgia Annotated, relating to public
officers and employees, is amended by adding a new article to read as
follows:
"ARTICLE
7
"45-12-210.
There
is created the Office of State Inspector General, whose purpose shall be to
investigate the management and operation of state agencies. The Governor shall
appoint an inspector general who shall have jurisdiction over all officers and
employees of executive branch agencies and vendors and others persons doing
business with the executive branch of Georgia. The inspector general shall be
appointed by and serve at the pleasure of the Governor for a term of four years,
which may be renewed at the discretion of the Governor. The inspector general
shall be selected without regard to political affiliation and on the basis of
integrity, capability for strong leadership, and knowledge of accounting,
auditing, financial analysis, law, management analysis, public administration,
investigation, or criminal justice administration or other closely related
fields.
45-12-211.
As
used in this article, the term:
(1)
'Abuse' means the intentional, wrongful, or improper use or destruction of state
resources, or seriously improper practice that does not involve prosecutable
fraud.
(2)
'Corruption' means an intentional act of fraud, waste, or abuse or the use of
public office for personal, pecuniary gain for oneself or another.
(3)
'Fraud' means an act of intentional or reckless deceit to mislead or
deceive.
(4)
'Inspector general' means the inspector general or his or her
designee.
(5)
'Office' means the Office of State Inspector General.
(6)
'State agency' means any agency in the executive branch of Georgia. It shall
include all departments, agencies, boards, and commissions under the authority
of the Governor.
(7)
'Vendor' means any person doing business with a state agency in an amount that
exceeds $50,000.00 in a fiscal year.
(8)
'Waste' means a reckless or grossly negligent act that causes state funds to be
spent in a manner that was not authorized or represents significant inefficiency
and needless expense.
45-12-212.
The
inspector general shall have the following duties:
(1)
Investigate the management and operation of state agencies on his or her own
initiative, in order to determine whether waste, fraud, abuse, and corruption
have been committed or are being committed by state officers or state
employees;
(2)
Receive complaints alleging waste, fraud, abuse, and corruption, and determine
whether the information contained in those complaints alleges facts that give
reasonable cause to investigate, and, if so, determine if there is a reasonable
cause to believe that waste, fraud, abuse, or corruption has been committed or
is being committed by a state officer or state employee. An investigation may
not be initiated more than one year after the most recent act of waste, fraud,
abuse, or corruption or series of alleged acts of waste, fraud, abuse, or
corruption except where there is reasonable cause to believe that fraudulent
concealment has occurred. To constitute fraudulent concealment sufficient to
toll this limitation period, there must be an affirmative act or representation
calculated to prevent discovery of the fact that a violation has
occurred;
(3)
Except as otherwise provided in this Code section, the inspector general shall
report suspected acts of waste, fraud, abuse, or corruption that were or are
being committed by state officers or state employees to the Governor, and where
appropriate, to the responsive state or federal prosecuting authority with
jurisdiction over the matter if there is reasonable cause to believe that a
crime has occurred or is occurring. In addition, the inspector general shall
report acts of waste, fraud, abuse, or corruption, as appropriate under the
circumstances, to the State Ethics Commission, the appropriate licensing agency
for possible disciplinary action, or the person´s employer or direct report
for possible disciplinary action. The inspector general shall have no duty to
report acts of waste, fraud, abuse, or corruption to a person pursuant to this
Code section if such person allegedly committed or is committing the act of
waste, fraud, abuse, and corruption;
(4)
Except as otherwise provided in this Code section, the inspector general shall
report suspected acts of waste, fraud, abuse, or corruption arising out of any
investigation of a state agency, state officer, or state employee, that were or
are being committed by persons who are not state officers or state employees to
the Governor, and to the appropriate state or federal prosecuting authority with
jurisdiction over the matter if there is reasonable cause to believe that a
crime has occurred or is occurring;
(5)
The inspector general shall have the authority to investigate those cases where
action has been taken against a public employee for having cooperated with the
office. The inspector general shall report such actions to the Governor in the
form of a detailed report identifying the public employee and the action taken
against the public employee;
(6)
Upon conclusion of an investigation by the inspector general, he or she shall
issue a report. The report shall be filed with the Governor, and may be filed
with the head of each department or agency affected by or involved in the
investigation. The report shall include the following:
(A)
The basis for the investigation;
(B)
The actions taken in furtherance of the investigation;
(C)
Whether the investigation revealed that there was reasonable cause to believe
that an act of waste, fraud, abuse, or corruption has occurred; and
(D)
If an act of waste, fraud, abuse, or corruption was identified during the
investigation, the inspector general shall identify the person who committed the
act, describe the act, explain how it was detected, and indicate to whom it was
reported;
(7)
Identify other state agencies that are also responsible for investigating,
auditing, reviewing, or evaluating the management and operation of state
agencies and negotiate and enter into agreements with these agencies to share
information to avoid duplication of effort;
(8)
Consult with state agencies and advise them in developing, implementing, and
enforcing policies and procedures that will prevent or reduce the risk of waste,
fraud, abuse, and corruption by their state officers or state
employees;
(9)
After detecting waste, fraud, abuse, or corruption, review and evaluate the
relevant policies and procedures of the state agency in which the act occurred,
and advise the state agency as to any changes that should be made in its
policies and procedures so as to prevent recurrences of similar acts of waste,
fraud, abuse, and corruption;
(10)
Develop and promulgate rules and regulations necessary for the implementation of
this article;
(11)
Develop a manual of investigative techniques. The office shall also conduct
studies of techniques of investigating and detecting, and of preventing or
reducing the risk of, waste, fraud, abuse, and corruption by state officers and
employees; and
(12)
Close an investigation when the inspector general concludes there is
insufficient evidence that a violation has occurred. Closure by the inspector
general does not bar the inspector general from resuming the investigation if
circumstances warrant.
45-12-213.
(a)
It is the duty of every state officer and state employee under the jurisdiction
of the office to cooperate with the inspector general in any investigation
undertaken pursuant to this article. Each state agency shall make its premises,
equipment, personnel, books, records, and papers reasonably available to the
inspector general.
(b)
The inspector general shall be authorized to enter upon the premises of any
state agency at any time, without prior announcement, if necessary for the
successful completion of an investigation. In the course of an investigation,
the inspector general shall be authorized to question any state officer or state
employee serving in, and other person transacting business with, the state
agency, and may inspect and copy any books, records, or papers in the possession
of the state agency, taking care to preserve the confidentiality of information
contained in responses to questions or the books, records, or papers that is
made confidential by law.
(c)
In performing any investigation, the inspector general shall avoid interfering
with the ongoing operations of the state agency being investigated; provided,
however, that such interference is not reasonably necessary for the successful
completion of the investigation.
(d)
Other state agencies who are also responsible for investigating, auditing,
reviewing, or evaluating the management and operation of state agencies shall
negotiate and enter into agreements with the office for the purpose of sharing
information and avoiding duplication of effort.
(e)
Failure to cooperate with an investigation of the office is grounds for
disciplinary action, including dismissal. Nothing in this Code section limits
or alters a person´s existing rights or protections under state or federal
law.
(f)
If the inspector general determines that any alleged misconduct involves any
person not subject to the jurisdiction of the office, the inspector general
shall refer the reported allegations to the appropriate body. If the inspector
general determines that any alleged misconduct may give rise to criminal
penalties, the inspector general may refer the allegations regarding the
misconduct to the appropriate law enforcement authority.
45-12-214.
(a)
Any person who knows or has reasonable cause to believe that a state officer or
state employee has committed, or is in the process of committing, an act of
waste, fraud, abuse, or corruption shall prepare and file with the office a
complaint that identifies the person making the report and the state officer or
state employee who allegedly committed or is committing the act, describes the
act, and explains with specificity how the person reporting knew or had
reasonable cause to believe that the state officer or state employee committed
or is in the process of committing the act of waste, fraud, abuse, or
corruption. The preparation and filing of the complaint described in this Code
section is in addition to any other report that the person is required by law to
make.
(b)
The inspector general shall prescribe a form for complaints authorized pursuant
to this Code section. The inspector general shall provide a blank copy of the
form to the person, free of charge. No complaint is defective, however, because
it is not made on the form prescribed by the inspector general.
(c)
Any employee who knowingly files a false complaint or files a complaint with
reckless disregard for the truth or the falsity of the facts underlying the
complaint may be subject to disciplinary action.
45-12-215.
(a)
In performing any investigation, the inspector general shall be authorized to
administer oaths, examine witnesses under oath, and issue any subpoenas
necessary to compel the attendance of witnesses and the production of all books,
records, papers, and tangible items.
(b)
The inspector general shall issue subpoenas only if:
(1)
An investigation authorized pursuant to this article is being
conducted;
(2)
The investigation relates to misconduct within the programs and operation of
state agencies;
(3)
The inspector general has a reasonable belief that such misconduct has occurred;
and
(4)
The testimony of the witness or the documents or items sought by the subpoena
are relevant to the investigation.
(c)
A person duly subpoenaed for testimony, documents, and other items who neglects
or refuses to testify or produce documents or other items under the requirements
of the subpoena shall be subject to punishment as may be determined by a court
of competent jurisdiction. Nothing in this Code section limits or alters a
person´s existing rights or protections under state or federal
law.
45-12-216.
(a)
Except as otherwise provided in this Code section, the report of any completed
investigation conducted by the inspector general is a public record, open to
public inspection. Records pertaining to open investigations are considered
confidential and not subject to public release. The inspector general, or a
deputy inspector with the written approval of the inspector general, may
designate all or part of a report as confidential if doing so preserves the
confidentiality of matters made confidential by law or appears reasonably
necessary to protect the safety of witnesses or to avoid disclosure of
investigative techniques that, if disclosed, would enable persons who have been
or are committing an act of waste, fraud, abuse, or corruption to avoid
detection. Confidential material shall be marked clearly as being
confidential.
(b)
The inspector general shall provide a copy of each report of a completed
investigation, including wholly and partially confidential reports, to the
Governor, the Speaker of the House of Representatives, and the President of the
Senate. In addition, the inspector general shall provide a copy of the report
of any investigation to a prosecuting authority who may undertake criminal
prosecution of an act of waste, fraud, abuse, and corruption and licensing
agency, appointing authority, or a public employer that may take disciplinary
action with regard to an act of waste, fraud, abuse, or corruption. The
inspector general shall not provide a copy of any confidential part of the
report of an investigation to a person if that person allegedly committed the
act as described in the report. The Governor, the Speaker of the House of
Representatives, the President of the Senate, a prosecuting authority, the State
Ethics Commission, licensing agency, appointing authority, or public employer
that receives a report, all or part of which is designated as confidential,
shall take all appropriate measures necessary to preserve the confidentiality of
the report.
(c)
The inspector general shall provide a copy of any nonconfidential parts of any
report to any other person who requests the copy and pays a fee prescribed by
the inspector general. The fee charged shall be as set pursuant to Code Section
50-18-71.
45-12-217.
(a)
The inspector general shall be authorized to receive and investigate complaints
or information from any public employee concerning the possible existence of any
activity constituting waste, fraud, abuse, and corruption in or relating to any
state programs or operations under the jurisdiction of the executive
branch.
(b)
No agency, officer, or employer shall take action against a public employee or
public officer for disclosing or threatening to disclose the existence of any
activity constituting waste, fraud, abuse, and corruption to the inspector
general, unless the disclosure or threatened disclosure was made with knowledge
that the disclosure was knowingly false or with willful disregard for its truth
or falsity.
(c)
The inspector general shall not, after receipt of a complaint or information
from a public employee, disclose the identity of the employee without the
consent of the employee, unless the inspector general determines such disclosure
is unavoidable during the course of the investigation.
45-12-218.
(a)
Every state officer or employee in a state agency shall report promptly to the
inspector general any information concerning waste, corruption, fraud, or abuse
by another state officer or employee relating to his or her office or
employment, or by a person having business dealings with a state agency relating
to those dealings.
(b)
The knowing failure of any officer or employee to report as required above or
the knowing provision of false information shall be cause for discipline up to
and including discharge. Any officer or employee who acts in good faith
pursuant to this Code section by reporting to the inspector general improper
governmental action shall not be subject to dismissal, discipline, or other
adverse personnel action.
45-12-219.
This
article shall stand repealed on July 1, 2011."
SECTION
2.
All
laws and parts of laws in conflict with this Act are repealed.