CITY of ALBUQUERQUE
TWENTY SEVENTH COUNCIL
COUNCIL BILL NO. F/S O-26-40 ENACTMENT NO.
SPONSORED BY: Brook Bassan
ORDINANCE
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F/S Repealing ROA 1994, Chapter 2, Articles 10 And 17; Creating A Consolidated “Accountability In Government Ordinance” Governing The Ago Committee, Office Of Internal Audit, And Office Of The Inspector General (Bassan)
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REPEALING ROA 1994, CHAPTER 2, ARTICLES 10 AND 17; CREATING A CONSOLIDATED “ACCOUNTABILITY IN GOVERNMENT ORDINANCE” GOVERNING THE AGO COMMITTEE, OFFICE OF INTERNAL AUDIT, AND OFFICE OF THE INSPECTOR GENERAL.
BE IT ORDAINED BY THE COUNCIL, THE GOVERNING BODY OF THE CITY OF ALBUQUERQUE:
SECTION 1. ROA 1994, Chapter 2, Article 10, the “Accountability in Government Ordinance” and ROA 1994, Chapter 2, Article 17, the “Inspector General Ordinance” are hereby repealed in their entirety.
SECTION 2. A new “Accountability in Government Ordinance” is adopted as ROA 1994, Chapter 2, Article 10 as follows:
PART 1: ACCOUNTABILITY IN GOVERNMENT.
§ 2-10-1-1. SHORT TITLE. This Ordinance may be cited as the “Accountability in Government Ordinance.”
§ 2-10-1-2. FINDINGS; PURPOSE; GOALS.
(A) Findings. The City Council finds that good governance, transparency and accountability in the public sector are critical for the effective and credible functioning of a healthy democracy, and in fulfilling the government’s responsibility to citizens and taxpayers.
(1) Office of Internal Audit. To provide effective audit services, objective and independent evaluations and effective audit solutions to promote the transparency, accountability, efficiency, and effectiveness of City government for the citizens of Albuquerque and increase the public’s confidence in their government.
(2) Office of the Inspector General. Effective independent investigations, inspections, evaluations, and reviews along with transparent and reliable reporting in government serve to promote accountability, enhance the effectiveness of government services to its citizens, and increase the public's confidence in their government.
(B) Purpose. The Mayor and City Council share a duty to ensure that the actions of public officials, employees, community-based organizations, and contractors of the City are carried out in the most responsible manner possible, and that city policies, budgets, goals, and objectives are fully implemented. To accomplish this end, the City requires the services of independent organizations to perform audits, investigations, and other activities.
(C) Goals. The Accountability in Government Oversight Committee shall oversee the City Auditor and the Inspector General, whose goals are to:
(1) Conduct performance audits, attestation engagements, non-audit services, investigations, inspections, evaluations, reviews, and other activities in an efficient, impartial, equitable and objective manner;
(2) Prevent, deter, and detect fraud, waste, and abuse and deter criminal activity in City activities including all City contracts and partnerships;
(3) Propose ways to increase the City’s legal, fiscal and ethical accountability to ensure that tax payers’ dollars are spent in a manner that improves the economy and transparency of operations; and
(4) Carry out the activities of their offices through independence in fact and appearance, audit, review, investigation, and interdiction.
§ 2-10-1-3. DEFINITIONS. For the purpose of this Ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ABUSE. The use of resources or exercise of authority that is contrary to rule or policy, or knowingly inconsistent with any established mission or objectives for the resource, or of the position held by the person exercising the authority. Abuse does not necessarily involve fraud or illegal acts.
AGO COMMITTEE or COMMITTEE. The Accountability in Government Oversight Committee.
AUDIT. Includes attestation engagements, performance audits, and non-audit activities conducted by the Office of Internal Audit. For purposes of this Ordinance, the term “audit” is used as a general descriptor for the work performed by the Office of Internal Audit and is not intended to reflect a specific level of assurance or professional service classification.
AUDITEES. Auditees are the city-related departments, programs, activities, agencies, vendors, contractors or other city-related entities affected by an audit. For purposes of this Ordinance, “auditee” is a general term used to describe entities involved in engagements performed by the Office of Internal Audit.
ATTESTATION ENGAGEMENTS. Attestation engagements are an examination, review, or agreed-upon procedures engagement conducted under the Generally Accepted Government Auditing Standards (GAGAS) attestation standards related to subject matter or an assertion that is the responsibility of another party.
BOARD OF ETHICS AND CAMPAIGN PRACTICES. The Board of Ethics and Campaign Practices created pursuant to the City Charter, Article XII, Code of Ethics.
CITIZENS' INDEPENDENT SALARY COMMISSION. The Citizens' Independent Salary Commission created pursuant to the City Charter, Article XVIII, Citizens' Independent Salary Commission.
CITY AUDITOR. The head of the Office of Internal Audit created and appointed pursuant to Part 2 of this Ordinance (Internal Audit).
CONTRACTORS. All city contractors, including community-based organizations.
EMPLOYEE. All city employees, including full-time, part-time, and appointed employees.
FRAUD. A knowing misrepresentation of the truth, or concealment of a material fact to induce another to act to his or her detriment.
FRAUDULENT FINANCIAL REPORTING. Intentional misstatements or omissions of amounts or disclosures in the financial statements to deceive financial statement users which may include intentional alteration of accounting records, misrepresentation of transactions, or intentional misapplication of accounting principles.
GENERALLY ACCEPTED GOVERNMENT AUDITING STANDARDS (GAGAS). Professional standards issued by the US Government Accountability Office (US GAO) for auditors of government entities, programs, and recipients of federal funds that provide a framework for conducting high-quality audits with competence, integrity, objectivity, and independence. GAGAS are often referred to as the “Yellow Book.”
INSPECTOR GENERAL. The head of the Office of the Inspector General created and appointed pursuant to Part 3 of this Ordinance (Inspector General).
INVESTIGATED PARTY. A city-related department, program, activity, agency, vendor, employee, contractor, or other city-related entity affected by an investigation.
INVESTIGATION. A formal inquiry or systematic study conducted by the Office of the Inspector General. A formal systematic study may include inspections, evaluations, and reviews which are analyses of operations and programs for the purposes of providing information for decision-making, and making recommendations to improve programs, policies, or procedures.
MISAPPROPRIATION OF ASSETS. Theft of an agency’s assets, including theft of property, embezzlement, or fraudulent payments.
NON-AUDIT SERVICES. Non-audit services are independent advisory or consulting activities that are not conducted under GAGAS. These services may include research, assistance, and other consultative work performed by the Office of Internal Audit at the request of the Administration or City Council.
OFFICIAL. The Mayor, City Councilors, and appointed members of city boards, commissions, or committees.
PERFORMANCE AUDITS. Performance Audits are engagements that provide objective analysis, findings, and conclusions to assist management and those charged with governance and oversight to, among other things, improve program performance and operations, reduce costs, facilitate decision making by parties with responsibility to oversee or initiate corrective action, and contribute to public accountability. In a performance audit, the auditors measure or evaluate the subject matter of the audit and present the resulting information as part of, or accompanying, the audit report. These audits are performed in accordance with GAGAS.
PUBLISHED REPORT. A report that, unless otherwise prohibited, has been presented to the AGO Committee, distributed in final form to the Mayor, Chief Administrative Officer, and City Council, and is available to the public.
PRINCIPLES AND STANDARDS FOR OFFICES OF INSPECTOR GENERAL. The framework of guidelines published by the Association of Inspectors General (AIG) that outline the professional standards, qualifications, and operational guidelines for independent and objective investigations and inspections within government agencies, often referred to as the “Green Book.”
SPECIAL REQUESTS. Exigent engagements not included in the annual audit plan because the need for service was not foreseen when the audit plan was adopted. Special requests for services may include performance audits, attestation engagements, and non-audit services such as benchmarking and best practices analyses requested by an official or the City Auditor, which are initiated at the discretion of the City Auditor.
WASTE. The thoughtless or careless expenditure, mismanagement, or inefficient use of resources to the detriment of the City.
§ 2-10-1-4. CREATION OF THE AGO COMMITTEE; MEMBERSHIP.
(A) The "Accountability in Government Oversight Committee" is created as an independent oversight committee and shall oversee the City Auditor and the Inspector General.
(B) Membership and Qualifications.
(1) The AGO Committee shall consist of five voting members who are residents of the City.
(a) At least one member shall be a Certified Public Accountant or Certified Internal Auditor or Certified Fraud Examiner.
(b) One member shall have a law enforcement or legal background.
(c) One AGO Committee member shall have a professional management background.
(2) To be independent in fact and appearance, the AGO Committee must be free from conflicts of interest and not employed by the City, or in a direct contractual relationship or similar business relationship with the City. No member of the immediate family of the Office of Internal Audit or the Office of the Inspector General personnel shall be a member of the AGO Committee.
(3) The Mayor and one City Councilor appointed annually by the City Council President shall be nonvoting ex-officio members, shall receive all communications directed to the AGO Committee, except for communications regarding an investigation of an elected Official, and shall be notified of and may attend or send a designee to all AGO Committee meetings, except for any portion of a meeting that involves an investigation of an elected Official as specified below in Section 2-10-1-5(G). The ex-officio City Council member shall not participate in interviews of applicants seeking appointment as the City Auditor or Inspector General.
(4) The AGO Committee members shall annually elect a Committee Chair at the first meeting of the calendar year.
(C) Appointments. The AGO Committee members shall be appointed for staggered terms of three years unless an appointment is to fill a vacancy. An appointment to fill a vacancy shall be for the unexpired term. Terms shall begin on the first day of September. As vacancies on the AGO Committee occur, the City Council and Mayor shall alternatively appoint new members with the City Council making the first appointment. All appointments shall be subject to City Council approval. The existing AGO Committee members may make recommendations to the Mayor and City Council for candidates to fill vacancies on the AGO Committee. If either the Mayor or City Council fails to name a replacement AGO Committee member within 60 days of the vacancy, then the other body shall make the appointment.
(D) Removal of Members. The AGO Committee may recommend removal of any member from office by an affirmative vote of a majority of the AGO Committee after due notice (1) if such member has missed three consecutive meetings or has been absent from more than 50% of the meetings held during any 12 consecutive months; or (2) if such member has violated any law, regulation, or charter provision; or (3) for other good cause such as the intentional failure to carry out the duties of the AGO Committee. The AGO’s recommendation of removal shall be subject to final approval by the City Council by an affirmative vote of a majority of all Councilors.
(E) Ethical Requirements. The AGO Committee and its members are subject to the City Charter, Article XII, Code of Ethics. Committee members shall not receive compensation for their service. Voting members of the Committee shall not serve on any other city board, commission or task force.
(F) Staff. The Office of Internal Audit and/or Office of the Inspector General shall provide support staff to the AGO Committee.
§ 2-10-1-5. AGO COMMITTEE MEETINGS.
(A) The AGO Committee shall meet at least four times per year but may also meet more frequently upon the call of the AGO Committee Chair or a majority of its members.
(B) The AGO Committee is an independent oversight committee and not a public board, commission or committee as specified by ROA 1994, §§ 2-6-1-1 et seq., and not subject to the Open Meetings Act. The AGO Committee is not formed to formulate public policy nor has authority to formulate public policy been delegated to the AGO Committee.
(C) The AGO Committee is prohibited from forming any subcommittees or holding any meeting to discuss matters pertaining to AGO Committee business without inviting all members, including ex officio members, to the meeting.
(D) The AGO Committee shall adopt rules and regulations for its meetings and operations, including standard operating procedures, the review of reports, and oversight of the City Auditor and Inspector General.
(1) The AGO Committee, in consultation with the City Auditor and Inspector General, shall annually review and update as appropriate its policies and procedures to ensure that the AGO Committee is effectively accomplishing its duties under this Ordinance. No later than August 31 each year, the AGO Committee shall present its proposed policies and procedures to the Mayor for comment and the City Council for final approval. As part of its review, the City Council shall consider any comments provided by the Mayor and if the City Council determines that the AGO Committee’s proposal fails to ensure the AGO Committee is effectively accomplishing its duties, the City Council may make modifications as appropriate. Annual updates will become effective only upon final approval of the City Council.
(2) Updates outside of the annual review will become effective only upon a four-fifths (4/5) vote of the membership of the AGO Committee and only upon final approval by the City Council, as submitted or as amended by the Council.
(E) The AGO Committee may go into executive session as necessary to discuss pending litigation or personnel matters.
(F) The Chief Administrative Officer and the Director of Council Services or their respective designee, and their respective attorneys, may attend all Committee meetings, except for any portion of a meeting that involves an investigation of an elected Official as specified below in Section 2-10-1-5(G), or interviews of applicants seeking appointment as the City Auditor or Inspector General.
(G) If any elected Official is the subject of an investigation, then the ex- officio members or their designees and their attorneys shall not participate in the portion of any meeting at which that particular investigation is being discussed and they shall not have access to the investigative file while the investigation is pending.
§ 2-10-1-6. REVIEW OF REPORTS FROM THE CITY AUDITOR AND INSPECTOR GENERAL.
(A) The AGO Committee shall provide independent oversight, protect City Auditor and Inspector General independence, and enhance accountability by receiving reports while monitoring corrective actions and recommendations. The AGO Committee shall receive and acknowledge all reports presented by the City Auditor and Inspector General at each meeting. The AGO Committee’s authority shall be limited to receipt and acknowledgment of reports and its action on a report shall not constitute approval or disapproval of findings, conclusions, or recommendations.
(B) Upon presentation of a report, the AGO Committee may make the following motions: (1) receive and acknowledge the report; (2) receive and acknowledge the report subject to the inclusion of a cautionary statement; or (3) defer final consideration of the report to the next AGO Committee meeting at which the same office, either the Office of Internal Audit or the Office of the Inspector General, is scheduled to present reports.
(1) Receipt and Acknowledgement. If the AGO Committee receives and acknowledges the report without further comment, the City Auditor or Inspector General shall publish the report no later than fifteen (15) business days after the AGO Committee meeting.
(2) Receipt and Acknowledgement Subject to a Cautionary Statement. If the AGO Committee receives and acknowledges the report but chooses to provide feedback or other commentary on the report, the AGO Committee may prepare a cautionary statement. If the AGO Committee provides a cautionary statement to the City Auditor or Inspector General within fifteen (15) business days after the AGO Committee meeting, the statement shall be included as the first page(s) of all versions of the report, and the applicable office’s website shall state that the report contains a cautionary statement from the AGO Committee. Following the issuance of a cautionary statement, the City Auditor or Inspector General may:
(a) Publish the Report. Publish the report no sooner than fifteen (15) business days after the AGO Committee meeting but indicate on its website and in the annual report to City Council that the AGO Committee issued a cautionary statement regarding the report.
(b) Submit a Revised Report. Submit a revised report for reconsideration by the AGO Committee no later than thirty (30) business days after receipt of the AGO Committee’s cautionary statement. The City Auditor or Inspector General shall notify the AGO of their intent to submit a revised report no later than three (3) business days after receipt of the cautionary statement.
(c) Withdraw the Report. Withdraw the report at their sole discretion. If the City Auditor or Inspector General elects to withdraw a report, they shall notify the AGO Committee Chair in writing no later than fifteen (15) business days after receipt of the AGO Committee’s cautionary statement. When a report is withdrawn, it becomes a public record, but the report shall include a prominent disclaimer stating that it was withdrawn by the City Auditor or Inspector General and explaining the reason(s) for the withdrawal.
(3) Deferral of Final Consideration. If the AGO Committee defers final consideration on a report, it shall take a final vote on the report after presentation at the next AGO Committee meeting at which the same office is scheduled to present. Because AGO Committee meetings may include reports from the City Auditor, the Inspector General, or both, a deferral applies only to the next meeting at which the respective office presents reports. At the next AGO Committee meeting following the meeting at which the report was deferred, the AGO Committee shall either (1) receive and acknowledge the report; or (2) receive and acknowledge the report subject to a cautionary statement. The City Auditor or Inspector General shall then publish the report, submit a revised report, or withdraw the report pursuant to the provisions of this section.
(C) The usual requirements concerning AGO Committee review of reports shall not apply when activities are provided by the City Auditor or Inspector General at the request of the Citizens' Independent Salary Commission, the Board of Ethics and Campaign Practices, the City Clerk’s Office, or the City Attorney's Office. The purpose of this exception is to maintain the rights and duties of these entities to direct and limit the work performed.
(1) The City Auditor and the Inspector General may informally brief the Committee as to the commitment of resources to any work assigned by the Citizens' Independent Salary Commission, the Board of Ethics and Campaign Practices, the City Clerk’s Office, or the City Attorney’s Office and the progress being made toward the completion of the work conducted.
§ 2-10-1-7. OVERSIGHT OF THE CITY AUDITOR AND INSPECTOR GENERAL.
(A) The AGO Committee shall select candidates for City Auditor and Inspector General in accordance with Part 2 of this Ordinance (Internal Audit) and Part 3 of this Ordinance (Inspector General).
(B) The AGO Committee shall prepare job descriptions and specify qualifications for applicants. When a vacancy occurs, the AGO Committee shall work with the Director of the Human Resources Department to advertise for the position, develop the applicant search procedure, and make recommendations to the City Council on the selection of the City Auditor and the Inspector General. The AGO Committee shall apply human resources best practices to its applicant search relating to advertisement periods, job posting locations, including with national industry-oriented groups or associations, application review processes, interview processes, and contacting of references and prior employers as may be recommended by the Director of Human Resources or other reliable sources. The AGO Committee shall notify all applicants that confirmation by the Council is contingent upon a successful background investigation completed prior to their start date.
(C) The AGO Committee shall annually review salaries for the City Auditor and the Inspector General. If after such review the AGO Committee determines that a salary adjustment is warranted, the Chair of the AGO Committee shall, by January 15 of each year, notify the Director of the Department of Finance and Administrative Services and the Director of the Human Resources Department of any proposed salary adjustment, which will be subject to budget sufficiency and city personnel rules and regulations, and shall be commensurate and competitive with salaries for comparable positions within the City and other equivalent agencies in peer municipalities. Any salary adjustments proposed by the AGO Committee shall be contingent upon the City Council approving the budget appropriations necessary to fund the adjustment. The City Council may also choose to adjust the salaries of the City Auditor and Inspector General as part of the City’s annual budget process.
(D) The City Auditor and the Inspector General shall inform the Chair of the AGO Committee of any substantial use of vacation, sick, emergency, and other leave.
(E) The AGO Committee shall not prohibit the City Auditor or the Inspector General from initiating, carrying out or completing, and reporting on the activities of their offices. The AGO Committee shall not direct the City Auditor or Inspector General to engage any conduct that would violate this Accountability in Government Ordinance, including Part 2 (Internal Audit) or Part 3 (Inspector General). The Committee may provide the City Auditor and the Inspector General with guidance, priorities and potential areas for investigations and audits. The Committee may also lend advice to the City Auditor and the Inspector General regarding technical issues that may arise.
(F) Upon a majority vote, discipline of the City Auditor or the Inspector General, as provided by the City’s Merit System and Personnel Policy, may be recommended by the AGO Committee to the Human Resources Department. The AGO Committee may recommend removal of the City Auditor or Inspector General in accordance with the procedures outlined in Part 2: Office of Internal Audit and Part 3: Office of the Inspector General.
PART 2: OFFICE OF INTERNAL AUDIT.
§ 2-10-2-1. SHORT TITLE. This Part 2 of the Accountability in Government Ordinance may be cited as the “Internal Audit Ordinance.”
§ 2-10-2-2. CREATION OF THE OFFICE OF INTERNAL AUDIT; RESOURCES; STAFF.
(A) The Office of Internal Audit is created as an independent and non-partisan office of city government. The Office of Internal Audit is not part of the city's executive branch or the City Council. The City Auditor shall receive oversight from the AGO Committee.
(B) The Office of Internal Audit shall employ such staff as necessary to carry out its functions as prescribed by this Part, including but not limited to the City Auditor, professional audit staff, and other staff as may be necessary, at the discretion of the City Auditor. The City Auditor shall establish the organizational structure appropriate for carrying out the responsibilities and functions of the Office of Internal Audit.
(C) Office of Internal Audit staffing shall be subject to budget sufficiency and city personnel policies and procedures. The City Auditor has sole authority to recruit, hire, appoint, employ, promote, set compensation for, discipline, or discharge the staff of the Office of Internal Audit in a manner consistent with the Merit System Ordinance, the Grade Series Pay Plan, and applicable personnel policies and procedures. The City Auditor shall establish personnel procedures as deemed necessary for the efficient and effective administration of the activities of the Office of Internal Audit.
(D) The Office of Internal Audit shall be funded from the General Fund. Adequate funding shall be provided to uphold the ability of the Office of Internal Audit to carry out its duties and support its staff and operating expenses. Upon adoption of the City’s annual budget, any positions funded for the Office of Internal Audit shall be considered authorized for recruitment and hiring, subject only to applicable personnel policies and procedures. The Office of Internal Audit shall independently administer its own budget.
(E) The organization and administration of the Office of Internal Audit shall be sufficiently independent to ensure that no external interference or influence adversely affects the independence and objectivity of the Office of Internal Audit. Neither the City Auditor nor any employee of the Office of Internal Audit shall engage in any partisan political activities or the political affairs of the City during work hours.
(F) The Office of Internal Audit shall comply with all city ordinances and policies dealing with administrative functions including but not limited to those dealing with personnel and procurement.
(G) The Office of the City Attorney shall advise and represent the Office of Internal Audit. The Office of Internal Audit may, in consultation with the Office of the City Attorney, select independent legal counsel to advise and represent the Office, as needed, if the City Auditor determines, in their sole discretion, that independent legal counsel is necessary. The Office of Internal Audit may be responsible for paying costs related to its decision to retain independent legal counsel.
(H) The Office of Internal Audit shall have sole authority over the content, issuance, and timing of audit and non-audit services and reports, including findings and recommendations. The Accountability in Government Oversight Committee’s role with respect to the Office of Internal Audit is limited to oversight functions as described in the Accountability in Government Ordinance.
§ 2-10-2-3. SELECTION, RETENTION, AND REMOVAL OF THE CITY AUDITOR.
(A) Selection of the City Auditor.
(1) When a vacancy occurs, or when the term of the current City Auditor is due to expire, the AGO Committee, through its staff, shall accept applications from candidates, interview candidates, and shall submit to the City Council the names of the three candidates that it finds to be the best qualified to be City Auditor indicating its ranking, and including a general description of its selection process. The AGO Committee's recommendation to the City Council shall be based on the candidates' integrity, capability for strong management, and demonstrated ability in accounting, auditing, financial analysis, law, management analysis, public administration, investigation, criminal justice administration, or other closely related fields. Experience, performance, certifications, and advanced degrees may also be considered. If the AGO Committee is unable to identify three qualified candidates within six months of the City Auditor position becoming vacant, the AGO Committee may submit fewer names to the Council.
(2) If a current or prior city official, employee, or contractor is one of the candidates recommended to the City Council for possible appointment, the Committee shall submit to the City Council a statement describing its assessment of possible conflicts or appearances of conflicts, if any, that may result during the fulfillment of duties as City Auditor if that candidate is appointed.
(3) The City Council shall appoint the City Auditor from the candidates submitted by the AGO Committee. Should the Council decline to appoint from the candidates submitted by the AGO Committee, the Council President shall notify the AGO Committee that it must provide the Council with additional candidates.
(4) In lieu of recommending candidates to the City Council, the AGO Committee may recommend to the City Council the reappointment of the incumbent City Auditor. Should the City Council decline to reconfirm the incumbent City Auditor, the City Council President shall notify the AGO Committee that it must provide the City Council with alternate candidates pursuant to the provisions of this section.
(5) The selected candidate shall be appointed to a four-year term that begins on the date confirmed by the City Council, unless sooner removed pursuant to subsection (D) of this section.
(6) Council confirmation of the City Auditor shall be contingent upon a successful background investigation. Prior to their start date, the selected City Auditor shall be fingerprinted and shall provide two fingerprint cards or the equivalent electronic fingerprints to the Committee to obtain the candidate's Federal Bureau of Investigation record. Records and related information shall be confidential and shall not be disclosed to anyone other than AGO Committee members, unless otherwise required by law. The City shall pay for the cost of obtaining the Federal Bureau of Investigation records.
(B) If a current or prior city employee or official is appointed to the position of City Auditor, such person shall not audit or assist in the audit of the department or agency where such person previously served or was employed for a period of four years from the last day of such prior employment or service. Any audits of such department or agency shall be referred by the City Auditor to an independent third party auditor who shall serve as an independent proxy for the City Auditor, vested with the full authority of the City Auditor only for the purposes of the specific audit(s) so assigned, and who shall report to the Committee relating to the audit in the same manner as the City Auditor would under this Ordinance.
(C) As a condition of retention, the City Auditor must obtain certification as a Certified Public Accountant or Certified Internal Auditor through the appropriate entity within two years of appointment. Other professional certifications, such as Certified Fraud Examiner and Certified Information Systems Auditor are recommended. Within two years of appointment, the City Auditor shall transmit verification of their certification(s) to the AGO Committee, Mayor, and City Council. In the event that the required certification is not obtained within the two-year deadline, the Council may, in its discretion, grant one time extension, not to exceed one year.
(D) The City Auditor may be removed from office as follows:
(1) For cause upon the recommendation by the AGO Committee by an affirmative vote of four-fifths (4/5) of the members of the AGO Committee, subject to approval by the City Council by an affirmative vote of two-thirds (2/3) of the members of Council. For purposes of this section, cause may include, but is not limited to, conduct that is inconsistent with obligations under this Ordinance, or otherwise inconsistent with responsibilities of the position;
(2) Upon an affirmative vote of two-thirds (2/3) of the members of the City Council; or
(3) Upon the City Council's decision to not reconfirm the incumbent City Auditor.
(E) If the City Auditor position is vacated, the next highest-ranking individual in the Office of Internal Audit shall serve as Acting City Auditor during the vacancy, subject to AGO Committee discretion.
§ 2-10-2-4. CITY AUDITOR’S DUTIES AND AUTHORITY.
(A) The scope of internal audit activities encompasses, but is not limited to, objective examinations of evidence for the purpose of providing independent assessments on the adequacy, quality, efficiency, and effectiveness of governance, risk management, and control processes for the City.
(B) Within one year of initial appointment, and on an annual basis thereafter, the City Auditor shall promulgate regulations to establish procedures for the Office of Internal Audit. Any such regulations and procedures shall be developed and implemented in accordance with GAGAS and applicable City policies.
(C) If the City Auditor detects apparent or potential violations of law or apparent instances of misfeasance or nonfeasance by an official or auditee, the City Auditor shall evaluate the matter in accordance with GAGAS, including performing any additional procedures deemed necessary and documenting the matter as required by professional standards.
(1) The City Auditor shall report any such irregularities in writing to the AGO Committee.
(2) If the matter is believed to be criminal in nature, the City Auditor shall promptly refer it to the appropriate law enforcement authority and notify the Inspector General.
(3) The City Auditor shall consider appropriate disclosure in the audit report, consistent with GAGAS and any legal or investigative restrictions.
(D) Upon request of the Mayor or City Council, the City Auditor shall assist or provide resources to assist city departments in the review of state and federal legislation, city ordinances, resolutions, rules, regulations and policies pertaining to that particular city department or office.
(E) At an official’s special request, the City Auditor may initiate services subject to the provisions of ROA 1994, Section 2-10-2-8 (Special Requests; Audit Reports) of this Ordinance. The City Auditor retains sole professional discretion to determine whether to accept the request and, if accepted, the scope, timing, methodology, and reporting. The City Auditor shall evaluate special requests for risk, independence threats, resource impact, and may defer or decline a request that would impair independence or unreasonably interfere with planned work.
(F) In cases where the City Auditor deems it appropriate, the City Auditor may refer opportunities for increased efficiency or concerns about legal compliance or other issues to any appropriate City official or entity, including but not limited to, the Mayor, Chief Administrative Officer, Inspector General, City Attorney, City Clerk, City Council, or Director of Council Services.
(G) The City Auditor shall not investigate complaints:
(1) that are under the jurisdiction of the Civilian Police Oversight Agency or the Internal Affairs Division of the Albuquerque Police Department;
(2) related to matters that are under investigation by any state or federal agency;
(3) alleging discrimination or retaliation based on the complainant’s status as a member of a protected class;
(4) alleging violation of a collective bargaining agreement, the Labor Management Relations Ordinance, or otherwise relating to labor law matters;
(5) that are the subject of pending litigation;
(6) that allege an employee is violating City policies or personnel rules if the alleged violation has not yet been reported to, or is not yet otherwise known by, the employee’s supervisor;
(7) based solely on disciplinary action taken by an employee’s supervisor; or
(8) based on allegations of retaliation under Section 3-7-8 of the Whistleblower Ordinance, Part 2 of this Ordinance, (Internal Audit) or Part 3 of this Ordinance (Inspector General).
§ 2-10-2-5. PERFORMANCE AUDITS AND ATTESTATION ENGAGEMENTS.
(A) The City Auditor shall adhere to Generally Accepted Government Auditing Standards (GAGAS) in conducting their work and will be considered independent as defined by those standards. The Office of Internal Audit shall maintain independence in both fact and appearance.
(B) The activities of the Office of Internal Audit are subject to quality assurance reviews in accordance with GAGAS by an appropriate professional non-partisan objective group. A copy of the written report resulting from this review shall be furnished to the AGO Committee.
(C) The City Auditor shall have the power to subpoena witnesses, administer oaths and require the production of records subject to the New Mexico Rules of Civil Procedure. In the case of a refusal to obey a subpoena issued to any person, the City Auditor, through the City Attorney’s Office or its independent legal counsel, may make application to any District Court in the State that shall have the jurisdiction to order the witness to appear before the City Auditor and to produce evidence if so ordered, or to give testimony regarding the matter in question.
(D) The City Auditor shall maintain a complete record of each engagement conducted for a retention period of at least six (6) years, beginning the date that the report is published, or longer if required by City retention policy or other law. The record should include work papers and other supportive material directly pertaining to the published report. Records may be retained in electronic format.
§ 2-10-2-6. OFFICE OF INTERNAL AUDIT; PUBLIC RECORDS; CONFIDENTIALITY.
(A) The identity of a person making a report and associated allegations directly to the City Auditor is confidential information and shall not be disclosed without the written consent of the person unless otherwise required by law.
(B) Audit files generated by the Office of Internal Audit are confidential and shall not be divulged to any person or agency, except to the United States Attorney, the New Mexico Department of Justice, the Second Judicial District Attorney's Office, State Auditor, or any other bona fide law enforcement or investigatory agency, or as otherwise required by law, until the report is published or withdrawn, unless it is necessary for the City Auditor to make such records public in the performance of their duties. Except to the extent expressly authorized in this Ordinance, the Office of Internal Audit shall not disclose the fact that it is conducting an audit before the audit is published or withdrawn and shall not make any comment to the media regarding an audit while it is ongoing.
(C) The City Auditor shall maintain the confidentiality of any public records that are made confidential by law and is subject to the same penalties as the custodian of those public records for violating confidentiality statutes. To the extent the City Auditor deems it necessary to include confidential information in a report, the City Auditor shall redact that information from the public version of the report.
(D) The City Auditor shall not access attorney-client privileged records or files, including emails, unless written permission is granted by the holder of the attorney-client privilege. If such records are inadvertently acquired, the City Auditor shall immediately disclose the acquisition to the affected attorney and promptly destroy the records, unless the attorney otherwise grants permission to retain them.
(E) Subject to the limitations of this section, prior to publishing a report or audit, the City Auditor may share selected information with other city departments if the information is needed for decision-making purposes; otherwise, reports remain confidential until published or withdrawn, at which time they become public record.
(F) Published and withdrawn reports are public records except that the City Auditor shall delay the publication of reports when criminal conduct is found and the Inspector General or appropriate law enforcement authority is pursuing an investigation and release of the report might jeopardize further investigation. An audit report that has been delayed pursuant to this section shall be published promptly at the end of the condition giving rise to the delay.
(G) The City Auditor shall release a preliminary draft of an audit as provided in ROA 1994, Section 2-10-2-8 of this Ordinance.
(H) All workpapers that support audit findings become public after the audit report is published or withdrawn, except for information that is confidential or privileged by law.
§ 2-10-2-7. ANNUAL AUDIT PLAN; SPECIAL REQUESTS.
(A) Prior to the beginning of each fiscal year, the City Auditor shall submit an annual audit plan to the AGO Committee for review and comment. City officials shall be invited to recommend areas for inclusion in the plan. The plan shall include the auditees scheduled for audit during the year, a statement of the scope of the audit and the estimated time required to complete the audit.
(B) The annual audit plan shall be transmitted to the City Council for final approval as a resolution.
(C) The annual audit plan may be amended during the year after review by the AGO Committee.
(D) In the selection of audit areas, the determination of audit scope and the timing of audit work, the City Auditor should consult with federal and state auditors and independent auditors so that the desirable audit coverage is provided and audit effort may be properly coordinated.
(E) The City Auditor shall make reports at least quarterly to the Committee on the status of the annual audit plan.
(F) Special Requests. In all cases, the City Auditor shall, within 48 hours of implementation, notify the AGO Committee when a special request is being undertaken.
§ 2-10-2-8. OFFICE OF INTERNAL AUDIT REPORTS TO AGO COMMITTEE.
(A) All assurance activities, unless otherwise provided for under this Ordinance, shall result in a written final report.
(B) The City Auditor shall provide a preliminary draft of the report to the auditees and the Chief Administrative Officer for review and comment before it is submitted to the AGO Committee. If the audit involves the City Council and/or Council Services Department, the City Auditor shall provide the preliminary draft report to the auditees and the Director of Council Services.
(1) The auditees, Chief Administrative Officer, Director of Council Services, and any departments whose assistance is needed in order to accomplish any audit recommendation, shall have 14 calendar days to provide a written response to the City Auditor. Any responses provided within this timeframe shall be included in the City Auditor’s report submitted to the AGO Committee.
(2) The auditees’ written response shall specify agreement with each of the audit findings and recommendations or reasons for disagreement with findings or recommendations. The auditees’ written responses shall include auditees’ plans for implementing solutions to identified problems including timetables to complete such activities.
(3) The auditees’ written response to the preliminary draft may be utilized to amend the report if appropriate. If the preliminary audit report is amended, the auditees will be given a copy of the amended draft, and the auditees will be given up to 14 calendar days, as determined by the City Auditor and the auditees, to respond to the amended draft of the audit report. Any responses provided shall be included in the City Auditor’s report submitted to the AGO Committee.
(C) The City Auditor shall submit copies of each report to the AGO Committee for review. The reports shall be submitted to the AGO Committee at least 14 calendar days before the meeting at which the reports are to be presented and reviewed.
(D) The City Auditor shall submit a copy of each published report to each member of the AGO Committee and shall retain a copy as a permanent record for the retention period required by the City, beginning the date it became a published report or longer if required by law.
(E) If appropriate, the report shall contain the professional opinion or conclusions of the City Auditor.
(F) The City Auditor's audit reports shall comply with reporting requirements as defined by GAGAS.
(G) Auditees are responsible for developing, implementing, and completing corrective action plans for recommendations they accept. While recommendations are advisory in nature and management retains responsibility for determining appropriate corrective actions, management shall implement accepted corrective action plans within agreed-upon timeframes and provide status updates as requested by the Office of Internal Audit.
§ 2-10-2-9. OFFICE OF INTERNAL AUDIT ANNUAL REPORTING.
(A) Within 60 days of the end of each fiscal year, the City Auditor shall annually report to the City Council and the Mayor regarding the activities of the Office of Internal Audit. The annual report shall also include information related to the process of recruiting and hiring for positions in the Office of Internal Audit, including the time it takes for the Huan Resources Department to process a position after the initial request is initiated by the Office of Internal Audit, if applicable.
(B) Within 60 days of the end of each fiscal year, the City Auditor shall issue an annual report to the AGO Committee that separately lists all audits, published reports, and other assistance efforts completed during the fiscal year.--
(C) The Internal Auditor shall notify members of the media and the public of the issuance of the published report. The Office of Internal Audit shall publish the annual report publicly on the website of the Office of Internal Audit and shall provide copies of the annual report upon request.
§ 2-10-2-10. CONTRACT AUDITORS, CONSULTANTS, AND EXPERTS.
(A) Upon notification to the AGO Committee, the City Auditor may obtain the services of certified public accountants, qualified management consultants, certified fraud examiners, forensic auditors or other professional experts necessary to perform the functions of the Office of Internal Audit.
(B) Contractors performing such services shall not have any financial interest in the affairs of the auditees, officials or employees.
(C) The City Auditor shall coordinate and monitor auditing performed by persons under contract with the City Auditor.
(D) The Office of Internal Audit may be responsible for paying costs related to its decision to enter into such contracts.
§ 2-10-2-11. PENALTY; COOPERATION; RETALIATION PROHIBITED.
(A) All city officials, employees, and contractors shall provide the City Auditor full and unrestricted access to all city offices, employees, records, information, data, reports, plans, projections, matters, contracts, memoranda, correspondence, electronic data, property, equipment and facilities and any other materials within their custody, except investigative files of the Internal Affairs Division of the Albuquerque Police Department and records containing information protected by the attorney-client privilege. At the City Auditor’s request, an official, employee or contractor shall produce documents and make themselves available for interviews.
(B) If an official, employee, vendor or contractor fails to produce requested information, the City Auditor shall notify the AGO Committee and make written request to the Chief Administrative Officer and/or Director of Council Services, whichever is applicable, for assistance in causing a search to be made and germane exhibits to be taken from any book, paper or record excepting personal property. Upon such request, the Chief Administrative Officer and/or Director of Council Services shall require the officials, employees, vendors, or contractors to produce the requested information. In the event an official, employee, vendor, or contractor refuses to comply, the City Auditor may utilize their subpoena power as provided herein.
(C) Every city contract, bid, proposal, application or solicitation for a city contract and every application for certification of eligibility for a city contract or program shall contain a provision stating that the contracting parties will be subject to provisions of the Accountability in Government Ordinance.
(D) No person shall retaliate against, punish or penalize any other person for complaining to, cooperating with or assisting the City Auditor in the performance of their office.
(E) Each and every violation of this Ordinance is a criminal violation subject to the provisions of ROA 1994, Section 1-1-99.
(F) Any official or employee who violates the Accountability in Government Ordinance may be subject to discipline as specified in city ordinance, rules and regulations, or any applicable collective bargaining agreement.
PART 3: OFFICE OF THE INSPECTOR GENERAL.
§ 2-10-3-1. SHORT TITLE. This Part 3 of the Accountability in Government Ordinance may be cited as the "Inspector General Ordinance."
§ 2-10-3-2. CREATION OF THE OFFICE OF THE INSPECTOR GENERAL; RESOURCES; STAFF.
(A) The Office of the Inspector General is created as an independent and non-partisan office of City government. The Office of the Inspector General is not part of the City's executive branch or the City Council. The Inspector General shall receive oversight from the AGO Committee.
(B) The Office of the Inspector General shall employ such staff as necessary to carry out its functions as prescribed by this Part, including but not limited to the Inspector General, professional investigators, evaluators, reviewers, contract specialists, and others staff as may be necessary at the discretion of the Inspector General. The Inspector General shall establish the organizational structure appropriate for carrying out the responsibilities and functions of the Office of the Inspector General.
(C) Office of the Inspector General staffing shall be subject to budget sufficiency and city personnel policies and procedures. The Inspector General has sole authority to recruit, hire, appoint, employ, promote, set compensation for, discipline, or discharge the staff of the Office of the Inspector General in a manner consistent with the Merit System Ordinance, the Grade Series Pay Plan, and applicable personnel policies and procedures. The Inspector General shall establish personnel procedures as deemed necessary for the efficient and effective administration of the activities of the Office of the Inspector General.
(D) The Office of the Inspector General shall be funded from the General Fund. Adequate funding shall be provided to uphold the ability of the Office of the Inspector General to carry out its duties and support its staff and operating expenses. Upon adoption of the City’s annual budget, any positions funded for the Office of the Inspector General shall be considered authorized for recruitment and hiring, subject only to applicable personnel policies and procedures. The Office of the Inspector General shall independently administer its own budget.
(E) The organization and administration of the Office shall be sufficiently independent to ensure that no external interference or influence adversely affects the independence and objectivity of the Office of the Inspector General. Neither the Inspector General nor any employee of the Office of the Inspector General shall engage in any partisan political activities or the political affairs of the City during work hours.
(F) The Office of the Inspector General shall comply with all city ordinances and policies dealing with administrative functions including but not limited to those dealing with personnel and procurement.
(G) The Office of the City Attorney shall advise and represent the Office of the Inspector General. The Office of the Inspector General may, in consultation with the Office of the City Attorney select independent legal counsel to advise and represent the Office, as needed, if the Inspector General determines, in their sole discretion, that independent legal counsel is necessary. The Office of the Inspector General may be responsible for paying costs related to its decision to retain independent legal counsel.
(H) The Office of the Inspector General shall have sole authority over the content, procedures, and timing of its investigations and reports, including findings and recommendations. The Accountability in Government Oversight Committee’s role with respect to the Office of the Inspector General is limited to oversight functions as described in the Accountability in Government Ordinance.
§ 2-10-3-3. SELECTION, RETENTION, AND REMOVAL OF THE INSPECTOR GENERAL.
(A) Selection of the Inspector General.
(1) When a vacancy occurs, or when the term of the current Inspector General is due to expire, the AGO Committee, through its staff, shall accept applications from candidates, interview candidates, and shall submit to the City Council the names of the three candidates that it finds to be the best qualified to be Inspector General indicating its ranking, and including a general description of its selection process. The AGO Committee's recommendation to the City Council shall be based on the candidates' integrity, capability for strong management, and demonstrated ability in accounting, fraud examination, financial analysis, law, management analysis, public administration, investigation, criminal justice administration, or other closely related fields. Experience, performance, certifications, and advanced degrees may also be considered. If the AGO Committee is unable to identify three qualified candidates within six months of the Inspector General position becoming vacant, the AGO Committee may submit fewer names to the Council.
(2) If a current or prior city official, employee, or contractor is one of the candidates recommended to the City Council for possible appointment, the Committee shall submit to the City Council a statement describing its assessment of possible conflicts or appearances of conflicts, if any, that may result during the fulfillment of duties as Inspector General if that candidate is appointed.
(3) The City Council shall appoint the Inspector General from the candidates submitted by the AGO Committee. Should the Council decline to appoint from the candidates submitted by the AGO Committee, the Council President shall notify the AGO Committee that it must provide the Council with additional candidates.
(4) In lieu of recommending candidates to the City Council, the AGO Committee may recommend to the City Council the reappointment of the incumbent Inspector General. Should the City Council decline to reconfirm the incumbent Inspector General, the City Council President shall notify the AGO Committee that it must provide the City Council with alternate candidates pursuant to the provisions of this section.
(5) The selected candidate shall be appointed to a four-year term that begins on the date confirmed by the City Council, unless sooner removed pursuant to subsection (D) of this section.
(6) Council confirmation of the Inspector General shall be contingent upon a successful background investigation. Prior to their start date, the selected Inspector General shall be fingerprinted and shall provide two fingerprint cards or the equivalent electronic fingerprints to the Committee to obtain the candidate's Federal Bureau of Investigation record. Records and related information shall be confidential and shall not be disclosed to anyone other than AGO Committee members, unless otherwise required by law. The City shall pay for the cost of obtaining the Federal Bureau of Investigation records.
(B) If a current or prior city employee or official is appointed to the position of Inspector General, such person shall not investigate or assist in the investigation of the department or agency where such person previously served or was employed for a period of four years from the last day of such prior employment or service. Any investigations of such department or agency shall be referred by the Inspector General to an independent third-party investigator who shall serve as an independent proxy for the Inspector General, vested with the full authority of the Inspector General only for the purposes of the specific investigation(s) so assigned, and who shall report to the Committee relating to the investigation in the same manner as the Inspector General would under this Ordinance.
(C) As a condition of retention, the Inspector General must obtain certification as a Certified Inspector General through the Association of Inspectors General or appropriate successor entity within two years of appointment. Other professional certifications, such as Certified Public Accountant and Certified Fraud Examiner are recommended. Within two years of appointment, the Inspector General shall transmit verification of their certification(s) to the AGO Committee, Mayor, and City Council. In the event that the required certification is not obtained within the two-year deadline, the Council may, in its discretion, grant one time extension, not to exceed one year.
(D) The Inspector General may be removed from office as follows:
(1) For cause upon the recommendation by the AGO Committee by an affirmative vote of four-fifths (4/5) of the members of the AGO Committee, subject to approval by the City Council by an affirmative vote of two-thirds (2/3) of the members of Council. For purposes of this section, cause may include, but is not limited to, conduct that is inconsistent with obligations under this Ordinance, or otherwise inconsistent with responsibilities of the position;
(2) Upon an affirmative vote of two-thirds (2/3) of the members of the City Council; or
(3) Upon the City Council's decision to not reconfirm the incumbent Inspector General.
(E) If the Inspector General position is vacated, the next highest-ranking individual in the Office of the Inspector General shall serve as Acting Inspector General during the vacancy, subject to AGO Committee discretion.
§ 2-10-3-4. INSPECTOR GENERAL’S DUTIES AND AUTHORITY.
(A) The Inspector General is authorized to investigate complaints of fraud, waste, or abuse, except as limited in this Ordinance. Unless otherwise required, Inspector General investigations should be limited to complaints alleging fraud, waste, or abuse. The Inspector General has a professional obligation to only investigate matters within their authority. The Inspector General also has the discretion to decline to conduct investigations, if they believe such an investigation would be unwarranted, frivolous, or an excessive use of City resources. Generally, the expenditure of City resources when conducting an investigation should be commensurate with the significance of the allegations contained in the complaint.
(B) Within one year of initial appointment, and on an annual basis thereafter, the Inspector General shall promulgate regulations to establish procedures for the Office of the Inspector General. Any such regulations and procedures shall be developed in accordance with the Principles and Standards for Offices of Inspector General and applicable City policies.
(C) If the Inspector General detects apparent or potential violations of law or apparent instances of misfeasance or nonfeasance by an official or investigated party, the Inspector General shall evaluate the matter in accordance with the Principles and Standards for Offices of Inspector General, including performing any additional procedures deemed necessary and documenting the matter as required by professional standards.
(1) The Inspector General shall report any such irregularities in writing to the AGO Committee.
(2) If the matter is believed to be criminal in nature, the Inspector General shall promptly refer it to the appropriate law enforcement authority and notify the City Auditor.
(3) If the irregularity is found in response to a complaint filed under the provisions of the Whistleblower Protection Act, the Inspector General shall conduct an investigation in accordance with NMSA 1978, §§ 10-16C-1 et seq., the Whistleblower Protection Act.
(4) If the irregularity is found in response to a complaint filed under the provisions of the Whistleblower Protection Ordinance, the Inspector General shall conduct an investigation in accordance with the Whistleblower Protection Ordinance.
(5) The Inspector General shall consider other disclosures as may be appropriate, consistent with the Principles and Standards for Offices of Inspector General and any legal or investigative restrictions.
(D) The Inspector General shall investigate allegations of improper governmental action when authorized pursuant to the Whistleblower Protection Ordinance.
(E) The Inspector General shall receive and evaluate complaints referred by any official, employee, contractor or the public and initiate an investigation when deemed appropriate. The Inspector General may also initiate an investigation when, in the course of performing their duties, they determine that there is reason to believe that a City official, employee, or contractor has engaged in fraud, waste, or abuse and the conduct is within the Inspector General’s jurisdiction pursuant to this section. Any such determination shall be documented in writing and included in the investigation file.
(F) In cases where the Inspector General deems it appropriate, the Inspector General may refer opportunities for increased efficiency or concerns about legal compliance or other issues to any appropriate City official or entity, including but not limited to the Mayor, Chief Administrative Officer, City Auditor, City Attorney, City Clerk, City Council, or Director of Council Services.
(G) Reports of fraud, waste, and abuse made by employees, public officials, contractors, or members of the public may be made telephonically or in writing through the hotline or website established by the Inspector General for the confidential reporting of financial fraud, waste, and abuse in government. Reports received or created by the Inspector General are investigatory information and investigatory documentation in connection with the Inspector General's duty to inspect or investigate the financial affairs and transactions of the City, its departments, contractors, or vendors in whole or in part.
(H) When required by law, the Inspector General shall provide information that is either confidential and/or related to an Office of Inspector General case that is not otherwise public. The Office of Inspector General shall work as collaboratively as possible in fulfilling the duties and functions prescribed by this Ordinance. Notwithstanding any of the foregoing, the Inspector General shall comply with all requirements for information from external audits or reviews regarding the management of the office from a fiscal, management, or non-case-related request.
(I) The Inspector General shall not investigate complaints:
(1) that are under the jurisdiction of the Civilian Police Oversight Agency or the Internal Affairs Division of the Albuquerque Police Department;
(2) related to matters that are under investigation by any state or federal agency;
(3) alleging discrimination or retaliation based on the complainant’s status as a member of a protected class;
(4) alleging violation of a collective bargaining agreement, the Labor Management Relations Ordinance, or otherwise relating to labor law matters;
(5) that are the subject of pending litigation;
(6) that allege that an employee is violating City policies or personnel rules if the alleged violation has not yet been reported to, or is not yet otherwise known by, the employee’s supervisor;
(7) based solely on disciplinary action taken by an employee’s supervisor; and
(8) related to legislative actions, unless there is an alleged violation of the Code of Ethics.
§ 2-10-3-5. PERFORMANCE OF INVESTIGATIONS AND INSPECTIONS.
(A) The Inspector General shall evaluate any complaints or referrals submitted to its office to determine whether it has jurisdiction to conduct an investigation or inspection pursuant to this Ordinance and whether an investigation or inspection is necessary or appropriate.
(B) The Inspector General's investigations, inspections, reviews, and reports shall conform to the Principles and Standards for Offices of Inspector General.
(C) The Office of the Inspector General's published reports shall be subject to quality assurance peer reviews by an appropriate professional non-partisan objective group every three to five years. A copy of the written report resulting from this review shall be furnished to the AGO Committee and posted on the website of the Inspector General.
(D) The Inspector General shall have the power to subpoena witnesses, administer oaths and require the production of records subject to the New Mexico Rules of Civil Procedure. In the case of a refusal to obey a subpoena issued to any person, the Inspector General, through the City Attorney’s Office or its independent legal counsel, may make application to any District Court in the state that shall have the jurisdiction to order the witness to appear before the Inspector General and to produce evidence if so ordered, or to give testimony regarding the matter in question.
(E) The Inspector General shall maintain a complete file of each investigation conducted for a retention period of at least six (6) years, beginning the date that the report is published, or longer if required by City retention policy or other law. The file should include work papers and other supportive material directly pertaining to the investigation. Records may be retained in electronic format.
§ 2-10-3-6. OFFICE OF THE INSPECTOR GENERAL; PUBLIC RECORDS; CONFIDENTIALITY.
(A) The identity of a person making a report and associated allegations directly to the Inspector General is confidential information and shall not be disclosed without the written consent of the person unless otherwise required by law.
(B) Investigation files and investigation reports generated by the Office of the Inspector General are confidential and shall not be divulged to any person or agency, except to the United States Attorney, the New Mexico Department of Justice, or the Second Judicial District Attorney's Office, State Auditor, or any other bona fide law enforcement or investigatory agency, or as otherwise required by law, until the report is published, unless it is necessary for the Inspector General to make such records public in the performance of their duties. Except to the extent expressly authorized in this Ordinance, the Office of the Inspector General shall not disclose the fact that it is conducting an investigation before the report of the investigation is published or withdrawn and shall not make any comment to the media regarding an investigation while it is ongoing.
(C) The Inspector General shall maintain the confidentiality of any public records that are made confidential by law and shall be subject to the same penalties as the custodian of those public records for violating confidentiality statutes. To the extent the Inspector General deems it necessary to include confidential information in a report, the Inspector General shall redact that information from the public version of the report.
(D) The Inspector General shall not access attorney-client privileged records or files, including emails, unless written permission is granted by the holder of the attorney-client privilege. If such records are inadvertently acquired, the Inspector General shall immediately disclose the acquisition to the affected attorney and promptly destroy the records, unless the attorney otherwise grants permission to retain them.
(E) Subject to the limitations of this section, the Inspector General may share selected information not otherwise made confidential by law or this Ordinance with other city departments if the information is necessary to prevent harm or loss to the City or its employees; otherwise, reports remain confidential until published or withdrawn, at which time they become public record.
(F) Published and withdrawn reports are public records except that the Inspector General shall delay the publication of reports when criminal conduct is found and the Inspector General or appropriate law enforcement authority is pursuing an investigation and release of the report might jeopardize further investigation. An investigation release that has been delayed shall be published promptly at the end of the condition giving rise to the delay.
(G) The Inspector General shall release a preliminary draft of an investigation report as provided in ROA 1994, Section 2-10-3-7 of this Part.
(H) All workpapers that support investigation findings become public after the investigation report is published or withdrawn, except for information that is confidential or privileged by law.
§ 2-10-3-7. INSPECTOR GENERAL REPORTS TO THE AGO COMMITTEE.
(A) Each investigation, other than those resulting from assignment by the Board of Ethics and Campaign Practices, shall result in a written final report.
(B) To facilitate a comprehensive management response, the Inspector General shall provide a preliminary draft of the report to the investigated party and the Chief Administrative Officer for review and comment before it is submitted to the AGO Committee. If the investigation involves the City Council and/or Council Services Department, the Inspector General shall provide the preliminary draft report to the Director of Council Services.
(1) Following receipt of the preliminary draft report, the investigated party, Chief Administrative Officer, Director of Council Services, and the department(s) involved in the investigation, shall have 14 calendar days to provide a written response to the Inspector General. Any responses provided within this timeframe shall be included in the Inspector General’s report submitted to the AGO Committee.
(2) All recipients of preliminary draft reports must agree to restrict its use and maintain the confidentiality of the information until the report is voted upon by the AGO Committee. The Chief Administrative Officer or Director of Council Services may share the investigation with other personnel only as necessary to prepare a response, and provided that such personnel must agree to restrict its use and maintain the confidentiality of the information until the report is voted upon by the AGO Committee.
(3) The Inspector General may utilize any comments to the preliminary draft report and may amend their report if appropriate. If the preliminary draft report is amended, the Inspector General will provide a copy of the amended preliminary draft, and may, in their discretion, allow up to 14 calendar days, to respond to the amended preliminary draft of the report before submission to the AGO Committee. Any additional responses provided shall be included in the Inspector General’s report submitted to the AGO Committee.
(C) The Inspector General shall submit copies of each report to the AGO Committee and shall retain a copy as a permanent record. The reports shall be submitted to the AGO Committee at least 14 calendar days before the meeting at which the reports are to be reviewed.
(D) For the purpose of review during the report presentation, the AGO Committee, at its sole discretion, may request and allow the attendance of city personnel or investigated parties and may require disclosure, on a case-by-case basis, of the full report submitted by the Inspector General to those parties either before or during the meeting.
(E) After the report has been voted upon by the AGO Committee, the Inspector General shall provide the investigated party, Chief Administrative Officer, Director of Council Services, and the department(s) involved in the investigation an opportunity to supplement or modify their response to the report before the final report is published. Such responses shall be submitted to the Inspector General no later than 3 business days from the date of the AGO Committee’s vote.
(F) Following the publication or withdrawal of a report, the Inspector General’s investigation on that matter is concluded, subject to any follow-up on corrective action that may be required by the Inspector General. If additional allegations are later received, a new investigation may be initiated.
(G) The Inspector General's investigation and inspection reports shall conform to the Association of Inspectors General professional standards.
§ 2-10-3-8. OFFICE OF THE INSPECTOR GENERAL ANNUAL REPORTING.
(A) Within 60 days of the end of each fiscal year, the Inspector General shall annually report to the Council and the Mayor regarding their activities and investigations. The annual report shall also include information related to the process of recruiting and hiring for positions in the Office of the Inspector General, including the time it takes for the Huan Resources Department to process a position after the initial request is initiated by the Office of the Inspector General, if applicable.
(B) Within 60 days of the end of each fiscal year, the Inspector General shall issue a published report to the Committee that separately lists investigations, published reports, and other assistance efforts completed during the fiscal year.
(C) The Inspector General shall notify members of the media and the public of the issuance of the published report. The Office of the Inspector General shall publish the reports publicly on the website of the Office of the Inspector General and provide copies of the published report upon request.
§ 2-10-3-9. CONTRACT INVESTIGATORS, CONSULTANTS, AND EXPERTS.
(A) Upon notification to the Committee, the Inspector General may obtain the services of certified public accountants, qualified management consultants, certified fraud examiners, forensic auditors or other professional experts necessary to perform the functions of the Office of the Inspector General.
(B) Contractors performing services for the Office of Inspector General shall not have any financial interest in the affairs of the investigated party, officials, or employees.
(C) The Inspector General shall coordinate and monitor the work performed by persons under contract with the Inspector General.
(D) The Office of the Inspector General may be responsible for paying costs related to its decision to enter into such contracts.
§ 2-10-3-10. PENALTY; COOPERATION; RETALIATION PROHIBITED.
(A) All city officials, employees, and contractors shall promptly notify the Inspector General of every instance of theft or other disappearance of cash, check, or property, of misfeasance or nonfeasance, defalcation, improper governmental actions and non-compliance with federal and state law, city ordinances and city rules and regulations of which they are aware.
(B) All city officials, employees, contractors, and offerors in a city procurement process shall provide the Inspector General full and unrestricted access to all city offices, employees, records, information, data, reports, plans, projections, matters, contracts, memoranda, correspondence, electronic data, property, equipment and facilities and any other materials within their custody, except investigative files of the Office of Internal Affairs of the Albuquerque Police Department and records containing information protected by the attorney-client privilege. At the Inspector General’s request, an official, employee, or contractor shall produce documents and make themselves available for interviews.
(C) If an official, employee, vendor or contractor fails to produce the requested information, the Inspector General shall notify the AGO Committee and make written request to the Chief Administrative Officer and/or Director of Council Services, whichever is applicable, for assistance in causing a search to be made and germane exhibits to be taken from any book, paper or record excepting personal property. Upon such request, the Chief Administrative Officer and/or Director of Council Services shall require the officials, employees, vendors or contractors to produce the requested information. In the event an official, employee, vendor, or contractor refuses to comply, the Inspector General may utilize their subpoena power as provided herein.
(D) The Inspector General may require city officials, employees, and contractors to provide updates regarding the implementation of any recommendations made in a report.
(E) Every city contract, bid, proposal, application or solicitation for a city contract and every application for certification of eligibility for a city contract or program shall contain a statement that the contracting parties will be subject to the provisions of the Accountability in Government Ordinance.
(F) No person shall retaliate against, punish or penalize any other person for complaining to, cooperating with or assisting the Inspector General in the performance of their office.
(G) Each and every violation of this Ordinance is a criminal violation subject to the provisions of ROA 1994, Section 1-1-99.
(H) Any official or employee who violates the Accountability in Government Ordinance may be subject to discipline as may be specified in the city ordinance, rules and regulations or any applicable collective bargaining agreement.
SECTION 3. SEVERABILITY. If any section, paragraph, sentence, clause, word or phrase of this Ordinance is for any reason held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The Council hereby declares that it would have passed this Ordinance and each section, paragraph, sentence, clause, word or phrase thereof irrespective of any provision being declared unconstitutional or otherwise invalid.
SECTION 4. COMPILATION. SECTION 1 of this Ordinance amends, is incorporated in, and is to be compiled as part of the Revised Ordinances of Albuquerque, New Mexico, 1994. SECTION 2 of this Ordinance is to be compiled as Article 10 in Chapter 2 of the Revised Ordinances of Albuquerque, New Mexico, 1994, titled “Accountability in Government Ordinance; Internal Audit; Inspector General.”
SECTION 5. EFFECTIVE DATE. This Ordinance takes effect five days after publication by title and general summary.
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