| 1 | A bill to be entitled |
| 2 | An act relating to agency inspectors general; amending s. |
| 3 | 20.055, F.S.; revising and providing definitions; |
| 4 | providing duties of agency inspectors general relating to |
| 5 | issues of deficiencies, abuses, or fraud by entities |
| 6 | contracting with the state; requiring agency inspectors |
| 7 | general to adopt certain principles and standards; |
| 8 | requiring agencies under the Governor to notify the Chief |
| 9 | Inspector General of inspector general appointments and |
| 10 | terminations; prohibiting agency staff from preventing or |
| 11 | prohibiting the inspector general from initiating, |
| 12 | carrying out, or completing any audit or investigation; |
| 13 | requiring audits to be conducted in accordance with the |
| 14 | current International Standards for the Professional |
| 15 | Practice of Internal Auditing; requiring the inspectors |
| 16 | general to submit preliminary audit findings and |
| 17 | recommendations to the entity; requiring the entity to |
| 18 | respond within a specified time; requiring the response |
| 19 | and any rebuttal to be included in the final report; |
| 20 | requiring inspectors general to examine certain |
| 21 | complaints; requiring inspectors general to employ only |
| 22 | trained and experienced investigators; requiring the Chief |
| 23 | Inspector General to adopt certain rules and procedures; |
| 24 | providing exemptions from the review process for certain |
| 25 | investigations; providing an effective date. |
| 26 |
|
| 27 | Be It Enacted by the Legislature of the State of Florida: |
| 28 |
|
| 29 | Section 1. Section 20.055, Florida Statutes, is amended to |
| 30 | read: |
| 31 | 20.055 Agency inspectors general.-- |
| 32 | (1) For the purposes of this section: |
| 33 | (a) "State agency" means each department created pursuant |
| 34 | to this chapter, and also includes the Executive Office of the |
| 35 | Governor, the Department of Military Affairs, the Fish and |
| 36 | Wildlife Conservation Commission, the Office of Insurance |
| 37 | Regulation of the Financial Services Commission, the Office of |
| 38 | Financial Regulation of the Financial Services Commission, the |
| 39 | Public Service Commission, and the state courts system. |
| 40 | (b) "Agency head" means a public official that includes |
| 41 | the Governor, a Cabinet officer, a secretary as defined in s. |
| 42 | 20.03(5), or an executive director as defined in s. 20.03(6). It |
| 43 | also includes the chair of the Public Service Commission, the |
| 44 | Director of the Office of Insurance Regulation of the Financial |
| 45 | Services Commission, the Director of the Office of Financial |
| 46 | Regulation of the Financial Services Commission, and the Chief |
| 47 | Justice of the State Supreme Court. The term does not include |
| 48 | the head of, or an officer of, a private entity operating as a |
| 49 | for-profit or not-for-profit entity. |
| 50 | (c) "Entities contracting with the state" means for-profit |
| 51 | and not-for-profit organizations or businesses that have a legal |
| 52 | existence, such as corporations or partnerships, as opposed to |
| 53 | natural persons, that have entered into a relationship with a |
| 54 | state agency as defined in paragraph (a) to provide for |
| 55 | consideration certain goods or services to the state agency or |
| 56 | on behalf of the state agency. The relationship may be evidenced |
| 57 | by payment by warrant or purchasing card, contract, purchase |
| 58 | order, provider agreement, or other such mutually agreed upon |
| 59 | relationship. |
| 60 | (d) "Individuals substantially affected" means natural |
| 61 | persons who have established a real and sufficiently immediate |
| 62 | injury in fact due to the findings, conclusions, or |
| 63 | recommendations of a final report of a state agency inspector |
| 64 | general and who do not have or are not currently afforded an |
| 65 | existing right to an independent review process. Employees of |
| 66 | the state, including career service, probationary, other |
| 67 | personal service, Selected Exempt Service, and Senior Management |
| 68 | Service employees, are not covered by this definition. This |
| 69 | definition also does not cover former employees of the state |
| 70 | when the final report of the state agency inspector general |
| 71 | relates to matters arising during the former employee's term of |
| 72 | state employment. |
| 73 | (e) "Additional material relevant" means evidence |
| 74 | submitted to the state agency inspector general prior to release |
| 75 | of the final report that likely would have affected the |
| 76 | investigative findings. Such evidence is not merely cumulative |
| 77 | of evidence considered by the state agency inspector general |
| 78 | and, to be relevant, must tend to prove or disprove the matters |
| 79 | at issue in the investigation. Newly discovered evidence may be |
| 80 | considered if it was discovered subsequent to the agency |
| 81 | inspector general's final report and the agency inspector |
| 82 | general has affirmatively refused to reopen the investigation |
| 83 | despite such evidence. Such evidence shall not have been |
| 84 | withheld from the state agency inspector general during the |
| 85 | original investigation. |
| 86 | (f) "Original investigation" means an official |
| 87 | investigative review by a state agency inspector general of |
| 88 | information relative to suspected violations of any law, rule, |
| 89 | or agency policy resulting in written findings. |
| 90 | (2) The Office of Inspector General is hereby established |
| 91 | in each state agency to provide a central point for coordination |
| 92 | of and responsibility for activities that promote |
| 93 | accountability, integrity, and efficiency in government. It |
| 94 | shall be the duty and responsibility of each inspector general, |
| 95 | with respect to the state agency in which the office is |
| 96 | established, to: |
| 97 | (a) Advise in the development of performance measures, |
| 98 | standards, and procedures for the evaluation of state agency |
| 99 | programs. |
| 100 | (b) Assess the reliability and validity of the information |
| 101 | provided by the state agency on performance measures and |
| 102 | standards, and make recommendations for improvement, if |
| 103 | necessary, prior to submission of those measures and standards |
| 104 | to the Executive Office of the Governor pursuant to s. |
| 105 | 216.0166(1). |
| 106 | (c) Review the actions taken by the state agency to |
| 107 | improve program performance and meet program standards and make |
| 108 | recommendations for improvement, if necessary. |
| 109 | (d) Provide direction for, supervise, and coordinate |
| 110 | audits, investigations, and management reviews relating to the |
| 111 | programs and operations of the state agency, except that when |
| 112 | the inspector general does not possess the qualifications |
| 113 | specified in subsection (4), the director of auditing shall |
| 114 | conduct such audits. |
| 115 | (e) Conduct, supervise, or coordinate other activities |
| 116 | carried out or financed by that state agency for the purpose of |
| 117 | promoting economy and efficiency in the administration of, or |
| 118 | preventing and detecting fraud and abuse in, its programs and |
| 119 | operations. |
| 120 | (f) Keep such agency head informed concerning fraud, |
| 121 | abuses, and deficiencies relating to programs and operations |
| 122 | administered or financed by the state agency, recommend |
| 123 | corrective action concerning fraud, abuses, and deficiencies, |
| 124 | and report on the progress made in implementing corrective |
| 125 | action. |
| 126 | (g) Notify entities contracting with the state of reported |
| 127 | deficiencies, abuses, or fraud; recommend a corrective plan of |
| 128 | action; specify a timeframe for implementing the corrective |
| 129 | plan; and report on the progress made implementing the |
| 130 | corrective plan. |
| 131 | (h)(g) Ensure effective coordination and cooperation |
| 132 | between the Auditor General, federal auditors, and other |
| 133 | governmental bodies with a view toward avoiding duplication. |
| 134 | (i)(h) Review, as appropriate, rules relating to the |
| 135 | programs and operations of such state agency and make |
| 136 | recommendations concerning their impact. |
| 137 | (j)(i) Ensure that an appropriate balance is maintained |
| 138 | between audit, investigative, and other accountability |
| 139 | activities. |
| 140 | (k) Adopt the current Association of Inspectors General |
| 141 | Principles and Standards for Offices of Inspector General for |
| 142 | meeting the duties and responsibilities pursuant to this |
| 143 | section. |
| 144 | (3)(a) The inspector general shall be appointed by the |
| 145 | agency head. For agencies under the direction of the Governor, |
| 146 | the appointment shall be made after notifying the Governor and |
| 147 | the Chief Inspector General in writing, at least 7 days prior to |
| 148 | an offer of employment, of the agency head's intention to hire |
| 149 | the inspector general. |
| 150 | (b) Each inspector general shall report to and be under |
| 151 | the general supervision of the agency head and shall not be |
| 152 | subject to supervision by any other employee of the state |
| 153 | agency. The inspector general shall be appointed without regard |
| 154 | to political affiliation. |
| 155 | (c) An inspector general may be removed from office by the |
| 156 | agency head. For agencies under the direction of the Governor, |
| 157 | the agency head shall notify the Governor and the Chief |
| 158 | Inspector General, in writing, of the intention to terminate the |
| 159 | inspector general at least 7 days prior to the removal. For |
| 160 | state agencies under the direction of the Governor and Cabinet, |
| 161 | the agency head shall notify the Governor and Cabinet in writing |
| 162 | of the intention to terminate the inspector general at least 7 |
| 163 | days prior to the removal. |
| 164 | (d) The agency head or agency staff shall not prevent or |
| 165 | prohibit the inspector general or director of auditing from |
| 166 | initiating, carrying out, or completing any audit or |
| 167 | investigation. |
| 168 | (4) To ensure that state agency audits are performed in |
| 169 | accordance with applicable auditing standards, the inspector |
| 170 | general or the director of auditing within the inspector |
| 171 | general's office shall possess the following qualifications: |
| 172 | (a) A bachelor's degree from an accredited college or |
| 173 | university with a major in accounting, or with a major in |
| 174 | business which includes five courses in accounting, and 5 years |
| 175 | of experience as an internal auditor or independent postauditor, |
| 176 | electronic data processing auditor, accountant, or any |
| 177 | combination thereof. The experience shall at a minimum consist |
| 178 | of audits of units of government or private business |
| 179 | enterprises, operating for profit or not for profit; or |
| 180 | (b) A master's degree in accounting, business |
| 181 | administration, or public administration from an accredited |
| 182 | college or university and 4 years of experience as required in |
| 183 | paragraph (a); or |
| 184 | (c) A certified public accountant license issued pursuant |
| 185 | to chapter 473 or a certified internal audit certificate issued |
| 186 | by the Institute of Internal Auditors or earned by examination, |
| 187 | and 4 years of experience as required in paragraph (a). |
| 188 | (5) In carrying out the auditing duties and |
| 189 | responsibilities of this act, each inspector general shall |
| 190 | review and evaluate internal controls necessary to ensure the |
| 191 | fiscal accountability of the state agency. The inspector general |
| 192 | shall conduct financial, compliance, electronic data processing, |
| 193 | and performance audits of the agency and prepare audit reports |
| 194 | of his or her findings. The scope and assignment of the audits |
| 195 | shall be determined by the inspector general; however, the |
| 196 | agency head may at any time direct the inspector general to |
| 197 | perform an audit of a special program, function, or |
| 198 | organizational unit. The performance of the audit shall be under |
| 199 | the direction of the inspector general, except that if the |
| 200 | inspector general does not possess the qualifications specified |
| 201 | in subsection (4), the director of auditing shall perform the |
| 202 | functions listed in this subsection. |
| 203 | (a) Such audits shall be conducted in accordance with the |
| 204 | current International Standards for the Professional Practice of |
| 205 | Internal Auditing as and subsequent Internal Auditing Standards |
| 206 | or Statements on Internal Auditing Standards published by the |
| 207 | Institute of Internal Auditors, Inc., or, where appropriate, in |
| 208 | accordance with generally accepted governmental auditing |
| 209 | standards. All audit reports issued by internal audit staff |
| 210 | shall include a statement that the audit was conducted pursuant |
| 211 | to the appropriate standards. |
| 212 | (b) Audit workpapers and reports shall be public records |
| 213 | to the extent that they do not include information which has |
| 214 | been made confidential and exempt from the provisions of s. |
| 215 | 119.07(1) pursuant to law. However, when the inspector general |
| 216 | or a member of the staff receives from an individual a complaint |
| 217 | or information that falls within the definition provided in s. |
| 218 | 112.3187(5), the name or identity of the individual shall not be |
| 219 | disclosed to anyone else without the written consent of the |
| 220 | individual, unless the inspector general determines that such |
| 221 | disclosure is unavoidable during the course of the audit or |
| 222 | investigation. |
| 223 | (c) The inspector general and the staff shall have access |
| 224 | to any records, data, and other information of the state agency |
| 225 | he or she deems necessary to carry out his or her duties. The |
| 226 | inspector general is also authorized to request such information |
| 227 | or assistance as may be necessary from the state agency or from |
| 228 | any federal, state, or local government entity. |
| 229 | (d) At the conclusion of each audit, the inspector general |
| 230 | shall submit preliminary findings and recommendations to the |
| 231 | person responsible for supervision of the program function or |
| 232 | operational unit who shall respond to any adverse findings |
| 233 | within 20 working days after receipt of the tentative findings. |
| 234 | Such response and the inspector general's rebuttal to the |
| 235 | response shall be included in the final audit report. |
| 236 | (e) At the conclusion of any audit of a program or |
| 237 | contract that involves an entity contracting with the state, the |
| 238 | inspector general shall submit preliminary findings and |
| 239 | recommendations to the entity. The entity must respond to any |
| 240 | adverse findings within 20 working days after receiving the |
| 241 | preliminary findings of the inspector general. The response, and |
| 242 | the inspector general's rebuttal, if any, must be included in |
| 243 | the final report. |
| 244 | (f)(e) The inspector general shall submit the final report |
| 245 | to the agency head and to the Auditor General. |
| 246 | (g)(f) The Auditor General, in connection with the |
| 247 | independent postaudit of the same agency pursuant to s. 11.45, |
| 248 | shall give appropriate consideration to internal audit reports |
| 249 | and the resolution of findings therein. The Legislative Auditing |
| 250 | Committee may inquire into the reasons or justifications for |
| 251 | failure of the agency head to correct the deficiencies reported |
| 252 | in internal audits that are also reported by the Auditor General |
| 253 | and shall take appropriate action. |
| 254 | (h)(g) The inspector general shall monitor the |
| 255 | implementation of the state agency's response to any report on |
| 256 | the state agency issued by the Auditor General or by the Office |
| 257 | of Program Policy Analysis and Government Accountability. No |
| 258 | later than 6 months after the Auditor General or the Office of |
| 259 | Program Policy Analysis and Government Accountability publishes |
| 260 | a report on the state agency, the inspector general shall |
| 261 | provide a written response to the agency head on the status of |
| 262 | corrective actions taken. The Inspector General shall file a |
| 263 | copy of such response with the Legislative Auditing Committee. |
| 264 | (i)(h) The inspector general shall develop long-term and |
| 265 | annual audit plans based on the findings of periodic risk |
| 266 | assessments. The plan, where appropriate, should include |
| 267 | postaudit samplings of payments and accounts. The plan shall |
| 268 | show the individual audits to be conducted during each year and |
| 269 | related resources to be devoted to the respective audits. The |
| 270 | Chief Financial Officer, to assist in fulfilling the |
| 271 | responsibilities for examining, auditing, and settling accounts, |
| 272 | claims, and demands pursuant to s. 17.03(1), and examining, |
| 273 | auditing, adjusting, and settling accounts pursuant to s. 17.04, |
| 274 | may utilize audits performed by the inspectors general and |
| 275 | internal auditors. For state agencies under the Governor, the |
| 276 | audit plans shall be submitted to the Governor's Chief Inspector |
| 277 | General. The plan shall be submitted to the agency head for |
| 278 | approval. A copy of the approved plan shall be submitted to the |
| 279 | Auditor General. |
| 280 | (6) In carrying out the investigative duties and |
| 281 | responsibilities specified in this section, each inspector |
| 282 | general shall initiate, conduct, supervise, and coordinate |
| 283 | investigations designed to detect, deter, prevent, and eradicate |
| 284 | fraud, waste, mismanagement, misconduct, and other abuses in |
| 285 | state government. For these purposes, each inspector general |
| 286 | state agency shall: |
| 287 | (a) Receive complaints and coordinate all activities of |
| 288 | the agency as required by the Whistle-blower's Act pursuant to |
| 289 | ss. 112.3187-112.31895. |
| 290 | (b) Receive and examine consider the complaints that which |
| 291 | do not meet the criteria for an investigation under the Whistle- |
| 292 | blower's Act, or are reported by an entity contracting with the |
| 293 | state, and conduct, supervise, or coordinate such inquiries, |
| 294 | investigations, or reviews as the inspector general deems |
| 295 | appropriate. |
| 296 | (c) Report expeditiously to the Department of Law |
| 297 | Enforcement or other law enforcement agencies, as appropriate, |
| 298 | whenever the inspector general has reasonable grounds to believe |
| 299 | there has been a violation of criminal law. |
| 300 | (d) Conduct investigations and other inquiries free of |
| 301 | actual or perceived impairment to the independence of the |
| 302 | inspector general or the inspector general's office. This shall |
| 303 | include freedom from any interference with investigations and |
| 304 | timely access to records and other sources of information. |
| 305 | (e) Employ only trained and experienced investigators. |
| 306 | (f)(e) Submit in a timely fashion final reports on |
| 307 | investigations conducted by the inspector general to the agency |
| 308 | head, except for whistle-blower's investigations, which shall be |
| 309 | conducted and reported pursuant to s. 112.3189. |
| 310 | (7) Each inspector general shall, not later than September |
| 311 | 30 of each year, prepare an annual report summarizing the |
| 312 | activities of the office during the immediately preceding state |
| 313 | fiscal year. The final report shall be furnished to the agency |
| 314 | head. Such report shall include, but need not be limited to: |
| 315 | (a) A description of activities relating to the |
| 316 | development, assessment, and validation of performance measures. |
| 317 | (b) A description of significant abuses and deficiencies |
| 318 | relating to the administration of programs and operations of the |
| 319 | agency disclosed by investigations, audits, reviews, or other |
| 320 | activities during the reporting period. |
| 321 | (c) A description of the recommendations for corrective |
| 322 | action made by the inspector general during the reporting period |
| 323 | with respect to significant problems, abuses, or deficiencies |
| 324 | identified. |
| 325 | (d) The identification of each significant recommendation |
| 326 | described in previous annual reports on which corrective action |
| 327 | has not been completed. |
| 328 | (e) A summary of each audit and investigation completed |
| 329 | during the reporting period. |
| 330 | (8) The Chief Inspector General in the Executive Office of |
| 331 | the Governor, as defined in s. 14.32, shall: |
| 332 | (a) Adopt rules to specify the conditions and procedures |
| 333 | for reviewing a final investigative report by the inspector |
| 334 | general of an agency under the jurisdiction of the Governor. The |
| 335 | conditions and procedures must include provisions related to: |
| 336 | 1. Offering entities contracting with state agencies and |
| 337 | individuals substantially affected by the findings, conclusions, |
| 338 | and recommendations a meaningful opportunity to challenge in |
| 339 | writing the findings, conclusions, and recommendations contained |
| 340 | in an agency inspector general's final investigative report or |
| 341 | to seek review by the Chief Inspector General under the process |
| 342 | described in this subsection. |
| 343 | 2. Identifying the entities and individuals allowed to |
| 344 | submit a written response. |
| 345 | 3. Identifying the circumstances under which the entity's |
| 346 | or individual's response must be attached to the agency |
| 347 | inspector general's final report. |
| 348 | 4. Providing a review process that allows entities and |
| 349 | individuals substantially affected by the findings, conclusions, |
| 350 | and recommendations of an agency inspector general final |
| 351 | investigative report to present to the Chief Inspector General, |
| 352 | or a designee, any additional material relevant to the final |
| 353 | investigative report. The review process must provide that if an |
| 354 | administrative law judge of the Division of Administrative |
| 355 | Hearings within the Department of Management Services determines |
| 356 | that the material or evidence submitted by the individual |
| 357 | substantially affected proves that the individual or entity |
| 358 | contracting with the state has been wrongly accused by a state |
| 359 | agency in a criminal investigation, the administrative law judge |
| 360 | shall order the state agency to pay the outstanding balance owed |
| 361 | and the expenses incurred to defend against the wrongful |
| 362 | accusation. The administrative law judge determination required |
| 363 | under this subparagraph shall be pursuant to a hearing conducted |
| 364 | by the Division of Administrative Hearings within the Department |
| 365 | of Management Services, and any such order shall constitute a |
| 366 | final order. |
| 367 | 5. Allowing the Chief Inspector General to independently |
| 368 | investigate the agency inspector general's final report and the |
| 369 | original investigation. |
| 370 | 6. Adopting special conditions for whistle-blower |
| 371 | investigations in accordance with ss. 112.3187-112.31895. |
| 372 | 7. Providing exemptions from the review process for the |
| 373 | following categories of investigations: |
| 374 | a. Matters under active criminal investigation. |
| 375 | b. Matters that are under review by a grand jury. |
| 376 | c. Instances where an individual substantially affected or |
| 377 | an adverse party has filed a civil suit against the state, the |
| 378 | state agency, or the agency head for matters that were the |
| 379 | subject of the initial agency inspector general report or |
| 380 | matters reasonably connected with the initial agency inspector |
| 381 | general investigation. |
| 382 | 8. Providing definitions of terms related to the review |
| 383 | process. |
| 384 | (b) Ensure that policies and procedures adopted pursuant |
| 385 | to this subsection are consistent with the recommendations |
| 386 | contained in the report of the Council on State Agency |
| 387 | Inspectors General dated December 19, 2006. |
| 388 |
|
| 389 | Nothing provided in this subsection shall be construed to limit |
| 390 | the jurisdiction of an agency inspector general defined in this |
| 391 | section or the Chief Inspector General as defined in s. 14.32. |
| 392 | (9)(8) Each agency inspector general shall, to the extent |
| 393 | both necessary and practicable, include on his or her staff |
| 394 | individuals with electronic data processing auditing experience. |
| 395 | Section 2. This act shall take effect July 1, 2007. |