Just a few weeks after I wrote about the fact that State Auditor Josh Gallion is a rising star with the people of North Dakota, the State Legislature coincidentally decided to put a damper on that by stripping him of his authority to initiate performance audits. Rather than line item veto the power grab, Governor Doug Burgum slapped his stamp of approval on it by signing it into law.
A lot has happened since that time:
- We questioned how the entire State Senate missed the change enroute to voting unanimously to pass the bill.
- One lawmaker had the guts to admit that some of them wanted to “reel in” the State Auditor.
- Our current State Auditor, Josh Gallion, had a meeting with the Senate and House Majority Leaders. We encouraged him not to give an inch. He didn’t. Unfortunately, they didn’t either. Senate Majority Leader Rich Wardner (R – District 37) announced in the meeting that the legislature wouldn’t reconvene to right their wrong.
- We were reminded in Josh Gallion’s interview with Point of View’s Chris Berg that he’s awaiting an Attorney General’s opinion on how his office is to move forward in the aftermath of the legislation.
- In the course of it all, a grassroots group formed under the name “Audit the Swamp” with the stated intention of referring the power grab to a vote of the people.
- This undoubtedly contributed to a moment of frustration for Governor Burgum when he told the Bismarck Tribune’s publisher Gary Adkisson that, “This is only an issue with a couple hundred people on social media.” Needless to say, we think he underestimates how many are troubled by the power grab. So, our take was that this was a really dumb thing to say.
- Not to be deterred by Burgum’s comments, the aforementioned Audit the Swamp turned in their affidavits to the Secretary of State’s office and are awaiting approval to begin collecting signatures for their referendum.
There is little — if any — question that this has been the hot topic in the aftermath of the 66th Legislative Session. And rightfully so. Stripping the State Auditor of his ability to do his job — on his own volition — is serious business.
Yet, amidst it all, there is one aspect of the situation that has seemingly received little attention from the public. And that is where the State Constitution comes in on this issue. It’s found in Section 2 of Article V, which establishes the Executive Branch:
“The powers and duties of the agriculture commissioner, attorney general, auditor, insurance commissioner, public service commissioners, secretary of state, superintendent of public instruction, tax commissioner, and treasurer must be prescribed by law. If the legislative assembly establishes a labor department, the powers and duties of the officer administering that department must be prescribed by law.” (Emphasis Added)
A reading of Article V in its entirety reveals exactly what this paragraph says. When it comes to the Governor — and to some degree the Lt. Governor — their duties are defined by the State Constitution. That’s clearly not the case with the State Auditor. So, the argument goes that the Legislature was acting within the constitutional framework granted to them. But does that mean what they did was right? I’d argue that it doesn’t.
I believe that what we have here is a separation of powers issue. Others might counter with, “But what about checks and balances? If not the Legislature, who’s the check on the State Auditor?” It’s a fair question. And to it, I would say, “Ultimately, the people who elect the State Auditor.” But aside from that, the Legislative Audit & Fiscal Review Committee (LAFRC) already hears reports from the State Auditor and is free to make suggestions for audits. If they feel something is out of line within the office is there anything prohibiting them from bringing that to the attention of the public?
I realize that this may not be a suitable answer to those who agree with what the Legislature did. But who’s easier to replace— a potentially problematic group of legislators (from a variety of districts) who can stifle the power of the State Auditor to do his job? Or a supposed overzealous State Auditor who’s abusing the power of the office? I think the answer is clear— it’s the latter.
I should point out — emphatically — that in saying a “problematic group of legislators” and “overzealous State Auditor” I am not necessarily referring to those individuals who currently occupy these offices. I’m simply utilizing hypotheticals often heard in the current debate on the issue.
Let’s not forget that the fundamental purposes of the State Auditor are to ensure performance, transparency, and accountability. Intentional or not, does what the Legislature did by stripping the authority to conduct performance audits support or potentially hinder the State Auditor in accomplishing these fundamental purposes of the office? Unfortunately, I think it paves the way for the latter.
In considering all of this, we are faced with this reality— this wouldn’t even be an issue had the State Constitution defined the powers and duties of the State Auditor instead of leaving it to the Legislature. And it is for this reason that I believe we should amend the document to do just that.
In my opinion, the office of State Auditor plays a vitally important role that literally no other state office can. And that is as it should be. But the office needs to be empowered to do its job— without begging permission from those who want to “reel him in”.
So, yes. I think constitutional changes are needed. But for now, we must focus on the task at hand— the referendum. Once the Secretary of State approves of the petition for referral, Audit the Swamp will need all the help that it can get to gather signatures and remove this awful law that was snuck into a bill in the waning hours of the Legislative Session.
The Legislature needs to be taught a valuable lesson. The people expect performance, transparency, and accountability. And we want a State Auditor who doesn’t need to ask permission to ensure that we get it.
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