No, Senator Wardner, the Legislature Is Not in Charge of the Auditor

North Dakota State Auditor Josh Gallion, center, listens to Senate Majority Leader Rich Wardner, left, during a meeting at the state Capitol Monday, May 13, 2019. John Hageman / Forum News Service

The American system of government is built around the concept of distributing the powers of government over multiple branches. At the state level its implementation can vary from one jurisdiction to the next, but that core concept persists wherever you go in the country.

For good reason. It’s a solid concept, one requiring some degree of consensus among the different branches of government before a policy can stand.

A side effect is that it can create friction between the various branches. That sort of friction is at the heart of the dispute over the powers of the state Auditor.

For those of you not up to speed, a last-minute amendment to the budget for the Auditor’s office requires the Auditor to go begging to a legislative committee for permission to conduct performance audits.

My colleague Iain Woessner has a very revealing report including extensive commentary on this situation from current Auditor Josh Gallion as well as Senate Majority Leader Rich Wardner. The whole article is worth your time to read, but this exchange between the two is perhaps the most important for the purposes of this post:

“Who do you think is in charge of the state auditor? The Legislature! The Legislature provides the rules for the auditor. Somebody has to be over the auditor. It’s the Legislature, and until this one came along, everything was fine,” Wardner said. “The auditor and the Legislature are connected at the hip. We need each other.”

Gallion disagrees.

“It’s a misunderstanding of the role. I’ve heard ‘the state auditor’s office and the Legislature are joined at the hip.’ No, we are not. We are separate but equal branches of government; we are not connected at the hip,” he said. “The way I take my job, and I take it very seriously, the role of the state auditor and the Legislative Audit and Fiscal Review Committee is intended to present audits, to make that information available to the Legislature … it’s an information exchange session.”

When he was on Plain Talk with me recently, Gallion said the chief conflict between himself and the Legislature was over the release of audits. Some lawmakers want those audits to be released to lawmakers first, and then to the public. Gallion says his mandate comes from the people – indeed, he was elected on the statewide ballot – and insists that his office release audits to everyone as soon as they’re done.

Lawmakers see this as Gallion looking to sensationalize his audits, and garner attention for himself. They also argue that Gallion’s process doesn’t give those being audited time to defend themselves, and tell their side of the story.

These arguments don’t make any sense. The Legislature cannot change the audit. Whether an audit is first made public at a legislative committee, or via a press release directly from the auditor’s office, it’s the same information. So why not just release it when it’s done?

As for the subjects of these audits, if you’ve ever read one of these reports you know that those audited are given space to agree or disagree with the audit’s findings and provide their own response. Also, nothing is stopping the leaders of these departments or agencies from speaking to the public and the press themselves to explain what’s going on.

At the center of this controversy is power. The Legislature – or at least a faction thereof – would like the Auditor to be subservient to them. Past auditors have gone along with that. Gallion will not.

It’s Gallion who has the right of it. If the Legislature is “in charge of the state auditor” as Wardner suggests, then why do we elected the Auditor? Why not make the Auditor an appointee, or a position that’s simply hired by state government?

The Auditor is elected because the Auditor is, and should be, an independent part of our government with a mandate directly from the electorate.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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