State Auditor Josh Gallion seems to be doing his best to follow the law and bring transparency and accountability to state government. Some public officials and lawmakers are less than enthused.
Last session, the Legislature tried to undercut the power of the state auditor by requiring approval of the Legislative Audit and Fiscal Review Committee prior to any performance audit of a state agency.
Gallion sought an opinion from Attorney General Wayne Stenehjam, who concluded that the new law is an unconstitutional encroachment on executive power in violation of the separation of powers doctrine.
House Majority Leader Rep. Chet Pollert, R-Carrington, and Rep. Mike Nathe, R-Bismarck, a member of the Legislative Audit and Fiscal Review Committee, think Gallion should follow the law notwithstanding the attorney general’s opinion.
An opinion from the attorney general governs the actions of public officials until the question is decided by a court. If the Legislature thinks Stenehjem’s opinion is wrong, it should file a lawsuit. Until then, Gallion is rightly complying with the attorney general’s opinion.
Gallion recently has been criticized for referring audit findings to law enforcement for possible criminal charges. Members of the Legislative Audit and Fiscal Review Committee expressed unhappiness that Gallion is forwarding audits to the attorney general before meeting with the committee.
Current law requires Gallion (or any other person, for that matter) to notify the attorney general or a state’s attorney if he “has knowledge of an actual or possible violation” of state law regarding government spending. When an agency audit reveals a potential violation, Gallion has a clear legal duty to notify the attorney general or a state’s attorney. He is under no obligation to secure the blessing of a legislative committee beforehand.
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The statute quoted above relates to the misspending of public funds. Other statutes may or may not explicitly require the same reporting, but the auditor is nevertheless well within his rights to seek review by prosecutors. No executive branch official should ignore a potential violation of the law.
Once Gallion makes a referral, he’s fulfilled his legal obligation and the issue is out of his hands. It’s then up to prosecutors to decide whether criminal charges are warranted.
In a recent case involving a conflict of interest and potential obstruction of an audit by the State College of Science, the Cass County state’s attorney declined to bring charges. Audits that found potential misspending of public funds by the Commerce Department and the State Library are currently being investigated.
If the issues revealed by the audits are honest mistakes as officials claim, there is almost no chance prosecutors will bring charges. Criminal convictions generally require some level of criminal intent be proven. Without the requisite intent, prosecutors will not file charges.
If public officials intentionally skirted the law when spending taxpayer money or contracting for services, they should be held accountable. Recent news reports cast the public officials as victims. We should wait for the results of the investigation before passing judgment.
Perhaps the law should be changed to allow more flexibility, but we shouldn’t overact. If the state auditor has too much discretion whether to refer audit results to the attorney general, a future auditor could abuse that discretion and shield wrongdoing by government officials.
Gallion’s critics are right about one thing -- he operates like a man seeking higher office. Unlike past auditors, Gallion regularly issues a press release when an audit is complete. That might evince political ambitions on his part, but it’s also a needed counterbalance to the nothing-to-see-here attitude in state government.
Gallion is doing his job and faithfully following the law. As for his critics, let them howl.
Tory Jackson is an attorney and writer. His legal practice involves real estate and business matters, with a particular focus on historic rehabilitation projects. He holds degrees from Bismarck State College, the University of Virginia and Harvard Law School. He lives in Bismarck, where he was born and raised.