2013 -- S 0266

=======

LC01047

=======

STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2013

____________

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ESTABLISHING AN OFFICE OF

INSPECTOR GENERAL

     Introduced By: Senators Raptakis, Cote, Sheehan, E O`Neill, and Hodgson

     Date Introduced: February 12, 2013

     Referred To: Senate Finance

It is enacted by the General Assembly as follows:

1-1

     SECTION 1. Title 42 of the General Laws entitled "STATE AFFAIRS AND

1-2

GOVERNMENT" is hereby amended by adding thereto the following chapter:

1-3

     CHAPTER 9.4

1-4

INSPECTOR GENERAL

1-5

     42-9.4-1. Purpose. -- The office of inspector general shall be an independent

1-6

administrative agency charged with the purpose of preventing and detecting fraud, waste, abuse

1-7

and mismanagement in the expenditure of public funds, whether federal, state, or local, and

1-8

relating to any and all state programs and operations as well as the procurement of any supplies,

1-9

services, or construction, by agencies, bureaus, divisions, sections, departments, offices,

1-10

commissions, institutions and activities of the state of Rhode Island, including those districts,

1-11

authorities, or political subdivisions created by the general assembly, the governor, and any court,

1-12

including any city and town within the state of Rhode Island.

1-13

     42-9.4-2. Definitions. -- As used in this chapter, unless the context requires otherwise,

1-14

the following words shall have the following meanings:

1-15

     (1) “Construction” means the process of building, altering, repairing, improving, or

1-16

demolishing any public structure or building, or other improvements of any kind to any public

1-17

property.

1-18

     (2) “Contract” means all types of agreements, including grants and orders, for the

1-19

purchase or disposal of supplies, services, construction, or any other item. It includes: awards;

2-1

contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type; contracts providing for

2-2

the issuance of job or task orders; leases; letter contracts; purchase orders; and construction

2-3

management contracts. It also includes supplemental agreements with respect to any of the

2-4

foregoing.

2-5

     (3) “Contractor” means any person, corporation, partnership, business, union, committee,

2-6

or other organization entity or group of individuals performing any tasks, or duties defined under

2-7

a written or oral contract with and for the state of Rhode Island.

2-8

     (4) “Procurement” means the purchasing, buying, renting, leasing, or otherwise obtaining

2-9

of any supplies, services, or construction. It also includes all functions that pertain to the

2-10

obtaining of any supply, service, or construction item, including a description of requirements,

2-11

selection and solicitation of sources, preparation, and award of contract, and all phases of contract

2-12

administration.

2-13

     (5) “Public funds” means state, federal and local funds, either appropriated, non-

2-14

appropriated or given under right of grant.

2-15

     (6) “Services” means the rendering, by a contractor, of its time and effort rather than the

2-16

furnishing of a specific end product, other than reports which are merely incidental to the required

2-17

performance of services.

2-18

     (7) “Supplies” means all property, including, but not limited to, leases of real property,

2-19

printing, and insurance, except land or permanent interest in land.

2-20

     42-9.4-3. Establishment of office; appointment and removal of inspector general. --

2-21

There is hereby established an office of inspector general, hereinafter called the office. There

2-22

shall be in the office an inspector general, who shall be the administrative head of the office and

2-23

who shall be appointed by a majority vote of the governor, the attorney general and the general

2-24

treasurer for a five (5) year term to begin July 1 and end June 30, five (5) years later. The

2-25

appointee shall serve one term only. The person so appointed shall be selected without regard to

2-26

political affiliation and with a demonstrated ability in accounting, auditing, financial analysis,

2-27

law, management analysis, public administration, investigation or criminal justice administration.

2-28

     The selection process of a qualified inspector general shall include at least one public

2-29

forum. If an inspector general is not selected within one month of a new inspector general term,

2-30

the governor shall appoint an inspector general. The inspector general shall have at least five (5)

2-31

years experience in accounting, criminal justice, or a closely related profession and a bachelor’s

2-32

degree from an accredited college or university with a major in accounting, criminal justice, or a

2-33

closely related field of study.

3-34

     No inspector general shall hold, or be a candidate for, any other elective or appointed

3-35

public office while an inspector general and for one year thereafter. No inspector general shall

3-36

hold a position in any political party or political committee, or participate in any political

3-37

campaign of any candidate for public office while an inspector general.

3-38

     In case of a vacancy in the position of inspector general, his/her successor shall be

3-39

appointed in the manner described above, and shall serve from his/her date of appointment until

3-40

the fifth (5th) June 30th following his/her appointment. If this vacancy is not filled within one

3-41

month, then the governor shall appoint an inspector general.

3-42

     The person so appointed may be removed from office for cause by a unanimous vote of

3-43

the governor, the lieutenant governor and the secretary of state. Such cause may include

3-44

substantial neglect of duty, gross misconduct or conviction of a crime whether or not it is work

3-45

related. The reasons for removal of the inspector general shall be stated in writing and shall

3-46

include the basis for such removal. Such writing shall be a public document. The inspector

3-47

general shall have ten (10) days to submit a written appeal, which shall be a public document. If

3-48

no appeal is made, the inspector general shall be dismissed from office. If an appeal is made, a

3-49

vote shall be taken in the senate. A two-thirds (2/3) vote of the senate shall be required to dismiss

3-50

the inspector general.

3-51

     42-9.4-4. Employees; appointment and removal, salaries, qualifications. -- The

3-52

inspector general may, subject to appropriation, appoint and remove such employees as he/she

3-53

deems necessary to perform the duties of the office, including, but not limited to, assistant

3-54

inspector generals, chief and deputy counsels, clerks, paralegals, accountants, auditors, financial

3-55

management analysts and investigators. The inspector general may determine their salaries and

3-56

duties; provided, however, that the total amount of all such salaries shall not exceed the sum

3-57

appropriated therefor by the general assembly.

3-58

     The inspector general shall file an annual personnel report not later than the first

3-59

Wednesday in February with the senate and house finance committees containing the job

3-60

classifications, duties and salary of each officer and employee within the department together

3-61

with personnel regulations applicable to said officers and employees. The inspector general shall

3-62

file amendments to such report with the senate and house finance committees whenever any

3-63

change becomes effective.

3-64

     No officer or employee of the office of inspector general shall hold, or be a candidate for,

3-65

any elective public office while an officer or employee, or for one year thereafter, nor shall he/she

3-66

hold a position in any political party or political committee, or participate in any political

3-67

campaign of any candidate for public office while an officer or employee.

4-68

     42-9.4-5. Inspector general; salary and budget. -- The general assembly shall

4-69

annually set the salary of the inspector general and set the total budget for the office of the

4-70

inspector general.

4-71

     42-9.4-6. Rules and regulations. -- The office shall, pursuant to the provisions of

4-72

chapter 42-35, Administrative Procedures Act, promulgate rules and regulations which shall

4-73

govern its proceedings.

4-74

     42-9.4-7. Duties. -- The inspector general shall supervise, coordinate and/or conduct

4-75

audits, criminal, civil and administrative investigations and inspections or oversight reviews,

4-76

when necessary, relating to programs and operations listed in section 42-9.4-1. The inspector

4-77

general shall review statutes and regulations relating to programs and operations listed in section

4-78

42-9.4-1 and shall determine if public bodies listed in section 42-9.4-1 are in compliance and

4-79

shall make recommendations concerning the effect of such statutes or regulations on the

4-80

prevention and detection of fraud, waste and abuse. The inspector general may recommend

4-81

policies that will assist in the prevention or detection of fraud, waste and abuse and

4-82

mismanagement. The person in charge of, or the governing body of any public body listed in

4-83

section 42-9.4-7, may request the assistance of the office of inspector general with respect to

4-84

implementation of any reviews, audits, and/or investigations as deemed appropriate and

4-85

implement suggested policy or procedure changes. In such events the inspector general may

4-86

assign personnel to conduct, supervise, or coordinate such activity as deemed necessary and

4-87

appropriate to perform his/her duties in a diligent and prudent manner. The inspector general

4-88

may recommend policies for the conduct, supervision or coordination of relationship, between

4-89

state and county agencies and other state and local governmental agencies as well as federal

4-90

governmental agencies and nongovernmental entities with respect to all matters relating to the

4-91

prevention and detection of fraud, waste, abuse and mismanagement in or relating to any and all

4-92

programs and activities of the state of Rhode Island as listed in section 42-9.4-1.

4-93

     42-9.4-8. Inspection of records and papers; investigations; subpoenas. -- (a) The

4-94

inspector general, in carrying out the duties outlined in this chapter, shall have access to all

4-95

records, reports, audits, reviews, papers, books, documents, recommendations, correspondence,

4-96

including information relative to the purchase of services or anticipated purchase of services

4-97

from any contractor by any public body listed in section 42-9.4-1, and any other data and material

4-98

that is maintained by or available to any public body regardless of the media in which it is

4-99

maintained which is in any way related to the programs and operations with respect to the state of

4-100

Rhode Island, including any local town, municipality or city.

5-101

      (b) The inspector general may request information, cooperation and assistance from any

5-102

state, county or local governmental agency as may be necessary for carrying out his/her duties

5-103

and responsibilities. Upon receipt of such request, each person in charge of, or the governing

5-104

body of any public body listed in section 42-9.4-1, shall furnish to the inspector general or his/her

5-105

authorized agent or representative such information, cooperation and assistance, including

5-106

information relative to the purchase of services or anticipated purchase of services from any

5-107

contractor by any public body within ten (10) business days of receipt of the inspector general’s

5-108

request. If the request for the information requested cannot be complied with, within the ten (10)

5-109

business days, the senior official of the governmental agency must notify the inspector general

5-110

before the expiration of the ten (10) business days as to the reason that the request cannot be

5-111

complied with in the time frame of this section and shall provide a specific date for expected

5-112

compliance.

5-113

      (c) The inspector general may initiate and conduct investigations, audits and compliance

5-114

reviews and shall prepare detailed reports relating to findings and conclusions concerning the

5-115

administration of the programs and operations of the applicable public bodies listed in section 42-

5-116

9.4-1, as are in the judgment of the inspector general necessary and may conduct an examination

5-117

of any public documents.

5-118

      (d) The inspector general shall have direct and prompt access to the head of any public

5-119

body listed in section 42-9.4-1 when necessary for any purpose pertaining to the performance of

5-120

his/her duties and responsibilities under this chapter.

5-121

      (e) The inspector general may request the production, on a voluntary basis, of testimony

5-122

or documents from any individual, firm or nongovernmental entity which relate to actions or

5-123

matters that pertain to state, municipal or local governmental agencies as dictated by his/her

5-124

duties and responsibilities.

5-125

      (f)(1) The inspector general may issue a subpoena for the production of all records,

5-126

reports, audits, reviews, papers, books, documents, recommendations, correspondence and any

5-127

other data and material relevant to any matter under audit or investigation pursuant to the

5-128

provisions of this chapter, no matter in which media the information is maintained.

5-129

      (2) A subpoena may be issued only when a person, corporation or other entity under

5-130

investigation or being audited refuses to voluntarily comply with a request from the inspector

5-131

general.

5-132

      (3) Such subpoena shall be served in the same manner as a subpoena for the production

5-133

of documents in civil cases issued on behalf of the state of Rhode Island, and all provisions of law

5-134

relative to said subpoena shall apply to a subpoena issued pursuant to this chapter. Any justice of

5-135

the superior court may, upon application by the inspector general, issue an order to compel the

6-1

production of records, reports, audits, reviews, papers, books, documents, recommendations,

6-2

correspondence and any other data and material as aforesaid in the same manner and to the same

6-3

extent as before said superior court. Any failure to obey such order may be punished by the

6-4

superior court as a contempt of court.

6-5

      (4) Any subpoena issued pursuant to this section, shall not be made public by the

6-6

inspector general or any officer or employee of that department, nor shall any documents or

6-7

records provided pursuant to this section be made public until such time as it is necessary for the

6-8

inspector general to do so in the performance of his/her official duties. The production of such

6-9

documents or records pursuant to subpoena shall be governed by the same provisions with

6-10

reference to secrecy, which govern the proceedings of a grand jury. Disclosure of such

6-11

production, attendance, and testimony may be made to such members of the staff of the office of

6-12

the inspector general as is deemed necessary in the performance of the inspector general’s duties

6-13

and responsibilities under this chapter and such members of the staff may be present at the

6-14

production of records.

6-15

      42-9.4-9. Subpoena for witness testimony and for release of material evidence. -- (a)

6-16

Whenever the inspector general has reason to believe that a person has information or evidence in

6-17

his/her possession with respect to any matter which is within the inspector general’s jurisdiction

6-18

to investigate, he/she may issue a subpoena for the attendance and testimony under oath of any

6-19

person as designated, or the surrender of identified item(s) of evidence; provided, however, that

6-20

such subpoena may be issued by the inspector general only in the performance of official duties

6-21

relating to the detection of fraud, waste, abuse and mismanagement. The subpoena for testimony

6-22

or specific items identified as needed in support of an investigation shall include: the name and

6-23

address of the prospective witness or specific items identified as needed for the investigation and

6-24

the reasons for requesting a subpoena for testimony or production of items deemed necessary to

6-25

support the investigation.

6-26

      (b) The inspector general or anyone duly authorized by law shall serve such subpoena.

6-27

Once the subpoena is served, the serving officer shall annotate the time and date served, the

6-28

person served and the location of service.

6-29

      (c) A witness required by subpoena to attend and testify under oath and/or produce books

6-30

and records or other items as demanded, shall be given not less than forty-eight (48) hours notice

6-31

of the time and place for the taking of testimony or delivery of subpoenaed items, unless such

6-32

notice shall unduly interfere with the conduct of the investigation.

7-33

      Such witness, at the time of service of a subpoena, shall be notified of the matter under

7-34

investigation concerning which such witness will be required to testify. A subject of an

7-35

investigation is a person whose conduct is within the scope of the investigation and is suspected

7-36

of committing or being party to an offense under investigation. The failure to furnish such witness

7-37

with any notice or information required to be given by this section shall cause the issued

7-38

subpoena to be invalid.

7-39

      (d) A person subpoenaed to testify under oath shall appear and testify under oath at the

7-40

time and place designated on the subpoena. In addition, the witness shall be notified that he/she

7-41

has a right to consult with and to have an attorney present at the time the testimony is taken and

7-42

that he/she has a constitutional right not to furnish or produce evidence that may tend to

7-43

incriminate him or her.

7-44

     (e) The terms of any such subpoena must be reasonable and focused on specific

7-45

testimony or evidence sought and must directly relate to the matters under investigation. A

7-46

subpoena issued that is broad in nature is not considered valid. No subpoena may be issued for

7-47

purposes of harassment or for any illegitimate or improper purpose. All constitutional and

7-48

statutory rights and privileges which exist with respect to any subpoena issued by the inspector

7-49

general, including the privilege against self-incrimination, shall have the same force and effect

7-50

with any and all existing laws and constitutional rights.

7-51

     (f) A subpoenaed person may object to the subpoena served upon him/her in advance of

7-52

the return date of the subpoena by a motion to quash filed in the superior court of the state of

7-53

Rhode Island. The filing of a motion to quash shall stay all pending subpoenas until further order

7-54

of the superior court. Any justice of the superior court may, upon application by the inspector

7-55

general, issue an order to compel the attendance of witnesses subpoenaed as aforesaid and the

7-56

giving of testimony under oath in furtherance of any audit or investigation under this chapter in

7-57

the same manner and to the same extent as before the superior court. Failure to obey any order of

7-58

the court with respect to a subpoena may be punished by said court as contempt.

7-59

     (g) Any subpoena issued pursuant to this section shall not be made public by the

7-60

inspector general or any persons subject to his/her direction or by any member of the inspector

7-61

general’s office designated to hear testimony under this section, and the same provisions with

7-62

reference to secrecy, which govern grand jury proceedings, shall govern testimony given.

7-63

Whoever violates the provisions of this paragraph shall be punished by imprisonment for not

7-64

more than six (6) months in a jail or house of correction or by a fine of not more than one

7-65

thousand dollars ($1,000). Disclosure of such testimony may be made to such members of the

7-66

staff of the office of inspector general as is deemed necessary by the inspector general to assist in

7-67

the performance of the office’s duties and responsibilities and such members of the staff may be

8-1

present at the taking of such testimony.

8-2

     42-9.4-10. Compact – Investigation. -- (a) The inspector general must accept and may

8-3

investigate or audit complaints or information from any individual concerning the possible

8-4

existence of any activity constituting fraud, waste, abuse and mismanagement relating to

8-5

programs and operations as listed in section 42-9.4-1.

8-6

     (b) The inspector general shall not, after receipt of a complaint or information from an

8-7

employee who requests confidentiality, disclose the identity of the employee without the written

8-8

consent of said employee, unless the inspector general determines such disclosure is necessary

8-9

and unavoidable during the course of an investigation. In such event, the employee shall be

8-10

notified immediately of such disclosure.

8-11

     (c) Employees are protected under the "Rhode Island Whistleblowers' Protection Act,"

8-12

chapter 28-50 of the general laws.

8-13

     42-9.4-11. Reports to the attorney general or United States attorney. -- In carrying

8-14

out his/her duties and responsibilities, the inspector general shall report to the attorney general,

8-15

the United States attorney or both whenever the inspector general has reasonable grounds to

8-16

believe there has been a violation of federal or state criminal law. The attorney general shall

8-17

institute appropriate proceedings in the furtherance of completing an investigation and, if

8-18

warranted, to refer a matter for prosecution.

8-19

     The inspector general shall refer audit or investigative findings to the state ethics

8-20

commission, or to any other federal, state or local agency, which has an interest in said findings.

8-21

     Any referrals made under this section shall not be made public.

8-22

     42-9.4-12. Civil actions. -- The inspector general shall have the authority to institute a

8-23

civil recovery action if authorized by the attorney general. In any case where the inspector

8-24

general has discovered fraudulent acts and believes that civil recovery proceedings may be

8-25

appropriate, he/she shall refer the matter to the attorney general. The attorney general may

8-26

institute whatever proceedings he/she deems appropriate, may refer the matter to another state or

8-27

local agency, may authorize the initiation of appropriate civil proceedings by the inspector

8-28

general, may retain the matter for further investigation, or may remand the matter to the inspector

8-29

general for further investigation.

8-30

     42-9.4-13. Annual and interim reports. -- (a) The office of inspector general shall, no

8-31

later than April 1st of each year, prepare a report summarizing the activities of the office of

8-32

inspector general for the prior calendar year. The office of inspector general may also prepare

8-33

interim reports. These reports shall be forwarded to the governor, lieutenant governor, attorney

8-34

general, secretary of state, general treasurer and the general assembly and shall be made available

9-1

to the public.

9-2

     (b) The report shall include, but not be limited to: a description of significant problems in

9-3

the areas of fraud, waste and abuse within programs and operations within the jurisdiction of the

9-4

office; a description of the recommendations for corrective action made by the office during the

9-5

reporting period with respect to significant deficiencies in the areas of fraud, waste and abuse; the

9-6

identification of each significant recommendation described in previous annual reports on which

9-7

corrective action has not been completed; a summary of matters referred to prosecuting

9-8

authorities and the prosecutions and convictions which have resulted; a summary of any matters

9-9

concerning the recovery of monies as a result of a civil suit by the office of inspector general or a

9-10

referral to another agency for the purposes of such suit; a list of all audit reports completed by the

9-11

office during the reporting period and a statement of recommendations of amendments to this

9-12

chapter or the rules, regulations or procedures governing the office of inspector general which

9-13

would improve the effectiveness or the operation of the office.

9-14

     (c) The head or governing body of each public body may, within sixty (60) days of

9-15

receipt, comment upon any references to such public body contained within the report. Such

9-16

comment, if any, shall be forwarded to the governor, the attorney general, the general assembly

9-17

and the office of inspector general.

9-18

     (d) The report of the inspector general shall be made public on the day of filing;

9-19

provided, that the report shall not list the names of individuals or corporations, nor describe them

9-20

with sufficient particularity as to readily identify them to the general public in those cases in

9-21

which no official disposition has been made by the office of inspector general, the office of

9-22

attorney general or the local office of the U.S. attorney.

9-23

     42-9.4-14. Confidentiality of records. -- All records of the office of inspector general

9-24

shall be confidential and shall not be public records, unless it is necessary for the inspector

9-25

general to make such records public in the performance of his/her duties.

9-26

     Violation of the provisions of the confidentiality of proceedings by the inspector general

9-27

or any member of the staff, or by any member of the inspector general’s office, shall be punished

9-28

by imprisonment in a jail or house of correction for not more than six (6) months or by a fine of

9-29

not more than one thousand dollars ($1,000).

9-30

     SECTION 2. This act shall take effect upon passage.

=======

LC01047

========

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N A C T

RELATING TO STATE AFFAIRS AND GOVERNMENT -- ESTABLISHING AN OFFICE OF

INSPECTOR GENERAL

***

10-1

     This act would establish the office of inspector general as an independent administrative

10-2

agency charged with the purpose of preventing and detecting fraud, waste and abuse, and

10-3

mismanagement in the expenditure of public funds.

10-4

     This act would take effect upon passage.

=======

LC01047

=======