2020 -- S 2709

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LC004928

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

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

INSPECTOR GENERAL

     Introduced By: Senators Sheehan, Raptakis, McKenney, Satchell, and Seveney

     Date Introduced: February 27, 2020

     Referred To: Senate Rules, Government Ethics and Oversight

     It is enacted by the General Assembly as follows:

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

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

CHAPTER 9.4

INSPECTOR GENERAL

     42-9.4-1. Purpose.

     The office of inspector general shall be an independent administrative agency charged with

the purpose of preventing and detecting fraud, waste, abuse and mismanagement in the expenditure

of public funds, whether federal, state, or local, and relating to any and all state programs and

operations as well as the procurement of any supplies, services, or construction, by agencies,

bureaus, divisions, sections, departments, offices, commissions, institutions and activities of the

state of Rhode Island, including those districts, authorities, or political subdivisions created by the

general assembly, the governor, and any court, including any city or town within the state of Rhode

Island. Investigations may include the expenditures by nongovernmental agencies of federal, state

and local public funds.

     42-9.4-2. Definitions.

     As used in this chapter, unless the context requires otherwise, the following terms shall

have the following meanings:

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

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

property.

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

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

     (i) Awards;

     (ii) Contracts of a fixed-price, cost, cost-plus-a-fixed-fee, or incentive type;

     (iii) Contracts providing for the issuance of job or task orders;

     (iv) Leases;

     (v) Letter contracts;

     (vi) Purchase orders; and

     (vii) Construction management contracts.

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

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

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

written or oral contract with and for the state of Rhode Island or the joint committee on legislative

services.

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

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

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

solicitation of sources, preparation, and award of contract, and all phases of contract administration.

     (5) "Public funds" means state, federal or local funds, either appropriated, non-appropriated

or given under right of grant.

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

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

performance of services.

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

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

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

     There is hereby established an office of inspector general, (hereinafter referred to as the

"office"). There shall be in the office an inspector general, who shall be the administrative head of

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

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

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

to political affiliation and with a demonstrated ability in more than one of the following areas:

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accounting, auditing, financial analysis, law, management analysis, public administration,

investigation and criminal justice administration.

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

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

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

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

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

related field of study.

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

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

position in any political party or political committee, or participate in any political campaign of any

candidate for public office while an inspector general.

     In case of a vacancy in the position of inspector general, their successor shall be appointed

in the manner described above, and shall serve from their date of appointment until the fifth June

30 following their appointment. If this vacancy is not filled within one month, then the governor

shall appoint an inspector general.

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

governor, the lieutenant governor and the secretary of state. Cause may include substantial neglect

of duty, gross misconduct or conviction of a crime whether or not it is work related. The reasons

for removal of the inspector general shall be stated in writing and shall include the basis for such

removal. The writing shall be a public document. The inspector general shall have ten (10) days to

submit a written appeal, which shall be a public document. If no appeal is made, the inspector

general shall be dismissed from office. If an appeal is made, a vote shall be taken in the senate. A

two-thirds (2/3) vote of the senate shall be required to dismiss the inspector general.

     42-9.4-4. Employees -- Appointment and removal, salaries, qualifications.

     The inspector general may appoint and remove such employees as deemed necessary to

perform the duties of the office, including, but not limited to, assistant inspectors general, chief and

deputy counsels, clerks, paralegals, accountants, auditors, financial management analysts and

investigators. The inspector general may determine their salaries and duties; provided, however,

that the total amount of all such salaries shall not exceed the sum appropriated therefor by the

general assembly.

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

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

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

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

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

becomes effective.

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

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

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

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

     42-9.4-5. Inspector general -- Salary and budget.

     The general assembly shall annually set the salary of the inspector general and shall

appropriate sufficient funds for the total budget for the office.

     42-9.4-6. Rules and regulations.

     The office shall, pursuant to the provisions of chapter 35 of title 42, ("administrative

procedures act"), promulgate rules and regulations which shall govern its proceedings.

     42-9.4-7. Duties.

     The inspector general shall supervise, coordinate and/or conduct audits, criminal, civil and

administrative investigations and inspections or oversight reviews, when necessary, relating to

programs and operations listed in § 42-9.4-1. The inspector general shall review laws and

regulations relating to programs and operations listed in § 42-9.4-1 and shall determine if public

bodies listed in § 42-9.4-1 are in compliance, and shall make recommendations concerning the

effect of such laws or regulations on the prevention and detection of fraud, waste and abuse. The

inspector general may recommend policies that will assist in the prevention or detection of fraud,

waste and abuse and mismanagement. The person in charge of, or the governing body of any public

body listed in § 42-9.4-1, may request the assistance of the inspector general with respect to

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

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

to conduct, supervise, or coordinate such activity as deemed necessary and appropriate to perform

their duties in a diligent and prudent manner. The inspector general may recommend policies for

the conduct, supervision or coordination of relationships, between state and county agencies and

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

nongovernmental entities with respect to all matters relating to the prevention and detection of

fraud, waste, abuse and mismanagement in or relating to any and all programs and activities of the

state of Rhode Island as set forth in § 42-9.4-1.

     42-9.4-8. Inspection of records and papers –Investigations – Subpoenas.

     (a) The inspector general, in carrying out the duties outlined in this chapter, shall have

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access to all records, reports, audits, reviews, papers, books, documents, recommendations,

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

of services from any contractor by any public body set forth in § 42-9.4-1, and any other data and

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

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

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

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

state, county or local governmental agency as may be necessary for carrying out their duties and

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

any public body set forth in § 42-9.4-1, shall furnish to the inspector general or their authorized

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

to the purchase of services or anticipated purchase of services from any contractor by any public

body within ten (10) business days of receipt of the inspector general’s request. If the request for

the information requested cannot be complied with, within ten (10) business days, the senior official

of the governmental agency must notify the inspector general before the expiration of the ten (10)

business days as to the reason that the request cannot be complied within the time frame of this

section, and shall provide a specific date for expected compliance.

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

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

administration of the programs and operations of the applicable public bodies listed in § 42-9.4-1,

as are in the judgment of the inspector general necessary and may conduct an examination of any

public documents, and any information with respect to whether internal quality controls are in place

and operating.

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

body set forth in § 42-9.4-1 when necessary for any purpose pertaining to the performance of their

duties and responsibilities under this chapter.

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

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

that pertain to state, municipal or local governmental agencies as dictated by their duties and

responsibilities.

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

audits, reviews, papers, books, documents, recommendations, correspondence and any other data

and material relevant to any matter under audit or investigation pursuant to the provisions of this

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

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

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

general.

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

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

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

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

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

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

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

court as a contempt of court.

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

general or any officer or employee of that office, nor shall any documents or records provided

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

to do so in the performance of their official duties. The production of documents or records pursuant

to subpoena shall be governed by the same provisions with reference to secrecy, which govern the

proceedings of a grand jury. Disclosure of such production, attendance, and testimony may be made

to such members of the staff of the office of the inspector general as is deemed necessary in the

performance of the inspector general's duties and responsibilities under this chapter, and such

members of the staff may be present at the production of records.

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

     (a) Whenever the inspector general has reason to believe that a person has information or

evidence in their possession with respect to any matter which is within the inspector general’s

jurisdiction to investigate, a subpoena must issue for the attendance and testimony under oath of

any person as designated, or the surrender of identified items of evidence; provided, however, that

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

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

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

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

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

support the investigation.

     (b) The inspector general or any other person duly authorized by law shall serve a

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

the person served and the location of service.

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

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

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

shall unduly interfere with the conduct of the investigation.

     (d) The witness, at the time of service of a subpoena, shall be notified of the matter under

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

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

or being party to an offense under investigation. The failure to furnish the witness with any notice

or information required to be given by this section shall cause the issued subpoena to be invalid.

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

time and place designated on the subpoena. In addition, the witness shall be notified that they have

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

they have a constitutional right not to furnish or produce evidence that may tend to incriminate the

person.

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

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

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

harassment or for any illegitimate or improper purpose. All constitutional and statutory rights and

privileges which exist with respect to any subpoena issued by the inspector general, including the

privilege against self-incrimination, shall have the same force and effect with any and all existing

laws and constitutional rights.

     (g) A subpoenaed person may object to the subpoena served upon them in advance of the

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

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

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

issue an order to compel the attendance of witnesses subpoenaed, and the giving of testimony under

oath in furtherance of any audit or investigation under this chapter in the same manner and to the

same extent as before the superior court. Failure to obey any order of the court with respect to a

subpoena may be punished by the court as contempt.

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

general or any persons subject to their direction or by any member of the inspector general's office

designated to hear testimony under this section, and the same provisions with reference to secrecy,

which govern grand jury proceedings, shall govern testimony given. Whoever violates the

provisions of this subsection shall be punished by imprisonment for not more than six (6) months

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or by a fine of not more than one thousand dollars ($1,000). Disclosure of such testimony may be

made to such members of the staff of the office of inspector general as is deemed necessary by the

inspector general to assist in the performance of the office's duties and responsibilities and such

members of the staff may be present at the taking of such testimony.

     42-9.4-10. Compact – Investigation.

     (a) The inspector general must accept and may investigate or audit complaints or

information from any individual concerning the possible existence of any activity constituting

fraud, waste, abuse and mismanagement relating to programs and operations as set forth in § 42-

9.4-1.

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

employee, contractor or private citizen who requests confidentiality, disclose the identity of that

individual without the written consent of said individual, unless the inspector general determines

such disclosure is necessary and unavoidable during the course of an investigation. In such event,

the individual shall be notified immediately of the disclosure. The inspector general shall set up an

anonymous hotline for reporting possible wrongdoings.

     (c) Employees are protected under chapter 50 of title 28, the ("Rhode Island

Whistleblower's Protection Act").

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

     (a) In carrying out their duties and responsibilities, the inspector general shall report to the

attorney general, the United States Attorney or both whenever the inspector general has reasonable

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

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

warranted, refer a matter for prosecution.

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

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

     (c) Any referrals made under this section shall not be made public.

     42-9.4-12. Coordination with other state agencies.

     The inspector general may coordinate with other state agencies that are responsible for

investigating, auditing, reviewing or evaluating the management of state agencies for the purpose

of sharing information and avoiding duplication of effort.

     42-9.4-13. Civil actions.

     The inspector general shall have the authority to institute a civil recovery action if

authorized by the attorney general. In any case where the inspector general has discovered

fraudulent acts and believes that civil recovery proceedings may be appropriate, the matter shall be

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referred to the attorney general. The attorney general may institute whatever proceedings deemed

appropriate, may refer the matter to another state or local agency, may authorize the initiation of

appropriate civil proceedings by the inspector general, may retain the matter for further

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

     42-9.4-14. Annual and interim reports.

     (a) The office of inspector general shall, no later than April 1 of each year, prepare a report

summarizing the activities of the office for the prior calendar year. The office may also prepare

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

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

to the public.

     (b) The report shall include, but not be limited to:

     (i) A description of significant problems in the areas of fraud, waste and abuse within

programs and operations within the jurisdiction of the office; and

     (ii) A description of the recommendations for corrective action made by the office during

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

and

     (iii) The identification of each significant recommendation described in previous annual

reports on which corrective action has not been completed; and

     (iv) A summary of matters referred to prosecuting authorities and the prosecutions and

convictions which have resulted; and

     (v) A summary of any matters concerning the recovery of monies as a result of a civil suit

by the office or a referral to another agency for the purposes of such suit; and

     (vi) A list of all audit reports completed by the office during the reporting period and a

statement of recommendations of amendments to this chapter or the rules, regulations or procedures

governing the office of inspector general which would improve the effectiveness or the operation

of the office.

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

comment upon any references to the public body contained within the report. The comment, if any,

shall be forwarded to the governor, the attorney general, the general assembly and the office of

inspector general.

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

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

sufficient particularity as to readily identify them to the general public in those cases in which no

official disposition has been made by the office of inspector general, the department of the attorney

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general or the local office of the United States Attorney.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

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

INSPECTOR GENERAL

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

agency charged with the responsibility to investigate, detect, and prevent fraud, waste, abuse, and

mismanagement in the expenditure of public funds.

     This act would take effect upon passage.

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