Chapter 1. The Military Department of California Military And Veterans Code >> Division 1. >> Chapter 1.
There shall be in the State Government the Military Department.
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.
The Adjutant General succeeds to, and is vested with, the
duties, power, purposes, responsibilities, and jurisdiction of the
Division of Military Affairs and of the officers and employees of
that division. The Adjutant General shall, in addition to all other
duties, be the head of the Military Department and shall be
responsible for its affairs, functions, duties, funds, and property.
The Adjutant General may enter into agreements to provide for
joint and several liability and indemnity to private agencies and
persons for injuries to third parties arising out of a negligent act
or omission by a member of the California National Guard while
involved in on-the-job training.
The creation of the Military Department shall in no manner
affect the status, position, pay, classification, rights, duties,
obligations, responsibilities, or tenure, as the same exist on the
effective date of this act, of any person, employee, appointee,
officer, enlisted person, warrant officer or commissioned officer
employed, enlisted or appointed by or on duty with or in the service
of the Office of the Adjutant General or the Adjutant General or the
National Guard or the State Military Reserve or the California Cadet
Corps or the Naval Militia.
All unexpended balances appropriated for the use of the office
of the Adjutant General, the Adjutant General, the National Guard,
the State Military Reserve or the Naval Militia and not required by
the office of the Adjutant General, the Adjutant General, the
National Guard, the State Military Reserve or the Naval Militia may
be expended by the Adjutant General for the use and benefit of the
Military Department. Except as herein provided, all money and funds
available to or appropriated for the use and benefit of the office of
the Adjutant General, the Adjutant General, the National Guard, the
State Military Reserve, the California Cadet Corps or the Naval
Militia, upon the effective date of this act, shall not be affected
by the creation of the Military Department.
(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.
(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.
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.
Notwithstanding Sections 9795 and 10231.5 of the Government
Code, on or before July 1 of each year, the department shall report
the following information to the Governor, the Legislature, the
Senate Committee on Veterans Affairs, and the Assembly Committee on
Veterans Affairs, the Attorney General, and the United States
Attorney for each district in California:
(a) For the previous federal fiscal year:
(1) The policies, procedures, and processes in place or
implemented by the Sexual Assault Prevention and Response (SAPR)
Program during that federal fiscal year in response to incidents of
sexual assault.
(2) An assessment of the implementation of the policies and
procedures on the prevention, response, and oversight of sexual
assaults in the military to determine the effectiveness of SAPR
policies and programs, including an assessment of how service efforts
executed federal Department of Defense SAPR priorities.
(3) Matrices for restricted and unrestricted reports of the number
of sexual assaults involving service members, that includes case
synopses, and disciplinary actions taken in substantiated cases and
relevant information. Reporting on restricted cases shall be limited
to aggregated statistical data so that the privacy of victims is
protected. Reporting on unrestricted cases shall be limited to
aggregated statistical data, but shall include, at a minimum, the
following subcategories:
(A) Types of crimes.
(B) Types of victims.
(C) Status of investigations.
(D) Status of prosecutions.
(E) Status of department administrative actions.
(4) Analyses of the matrices of the number of sexual assaults
involving service members. The analyses shall include analysis of
data and trends in comparison to state data from previous years and,
to the degree possible, comparisons of state data and trends and data
and trends from other branches and components of the United States
Armed Forces, including both active and reserve components, including
the National Guard of other states and territories.
(b) For the current federal fiscal year, any plans for the
prevention of and response to sexual assault, specifically in the
areas of advocacy, healthcare provider and medical response, mental
health, counseling, investigative services, legal services, and
chaplain response.
(a) There is in the state government a Governor's Military
Council (council) that shall serve under the direction of the
Military Department and consist of members appointed by the Governor.
The council shall advise the Governor on efforts to retain military
installations and operations within this state that are necessary for
the defense of the nation, and to coordinate and focus those
efforts.
(b) The council shall include, but not be limited to, bipartisan
representatives from both houses of the Legislature. Senate
representatives shall be nominated by the Senate Committee on Rules
and Assembly representatives shall be nominated by the Speaker of the
Assembly.
(c) This section shall remain in effect only until January 1,
2021, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2021, deletes or extends
that date.