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Muzzling fiscal watchdog is punishing Minnesota's taxpayers

MinnPost photo by Peter Callaghan
Although the most recent forecast showed the state has a $1.65 billion surplus, the Legislature, as I write this, is pushing new bills that will further cripple this office by cutting funding and enacting provisions to keep us from doing our work.

Government oversight and transparency are vital to ensuring the people’s trust. The Office of the State Auditor (OSA) oversees over $20 billion of taxpayer money spent yearly by local government in Minnesota. When we find compliance failures or financial improprieties, we must call them out. Due to the nature of the work, we are bound to ruffle feathers at times.

State Auditor Rebecca Otto
State Auditor Rebecca Otto

Tension between my office and those we oversee means we are doing our job. In the last two years, however, that natural tension has escalated to political retribution. The resulting casualties have been public protection and our government’s proper functioning.

Counties are entrusted with billions of taxpayer dollars each year. The Minnesota Constitution intended that the people elect an auditor who would watch over these dollars on their behalf by performing audits. In 2015, the Legislature took this protection from the people by passing a law allowing counties to control who audits them. Not only did the law gut a core function of the OSA, it improperly compromised a protection constitutionally promised to the people of Minnesota.

Equally troubling was how the law was passed. Tucked into a larger bill in the middle of the night on the last day of session, the audit privatization provision received no hearing in the Senate and limited hearings in the House. By the time it reached the governor, as one part of a huge bill funding state government, the governor’s only choice was to sign the bill or veto it and trigger a government shutdown. He signed the bill.

An affront to constitutional principles

As state auditor, I swore an oath of office to uphold the Minnesota Constitution. The founders understood that when it came to the people’s money, some will behave badly, and a strong independent office — the OSA — was necessary. The founders also believed in transparent lawmaking that allowed for checks and balances. The passage of the 2015 law was an affront to both these constitutional principles. After the law was signed, in order to protect the Constitution and the OSA, I brought a lawsuit asking the courts to invalidate it. Our case is in the Minnesota Court of Appeals.

But the story does not end with the 2015 law. Although the most recent forecast showed the state has a $1.65 billion surplus, the Legislature, as I write this, is pushing new bills that will further cripple this office by cutting funding and enacting provisions to keep us from doing our work. Why?

Certain legislators have attacked me for asking the judiciary to settle a legitimate constitutional dispute. They have made it clear that they intend to punish me and make the OSA pay, literally, for challenging the law. But they are not punishing me; they are punishing Minnesota’s taxpayers.

Major cuts in both versions

The Senate’s proposed budget cuts all parts of the OSA by 7.5 percent. It goes further to cut the Audit Division — the heart of the office — by an additional 32 percent. Similarly, the House cuts several OSA divisions by 21 percent. Because we have to charge fees for our audits, the drastic cuts to the Audit Division do not save the state money: They only limit the amount of staff we can support and consequently the amount of audits we can perform on behalf of the people of Minnesota. These cuts are clearly punitive.

The Senate bill also requires the OSA to pay the legal bills of those we have sued in our constitutional challenge to the 2015 law, regardless of who wins. Such a requirement is unheard of. Collectively, these legislative actions, if passed, further undermine the OSA’s ability to audit local governments and call out improprieties.

These ongoing legislative efforts run roughshod over the Constitution and muzzle the taxpayer’s watchdog. It is wrong and will cost Minnesota taxpayers dearly down the road. Is this what we want?

Please contact your state legislators and the governor and tell them to stop the ongoing assault on the people’s office.

Rebecca Otto is Minnesota's state auditor. Portions of this column were originally published at http://greenebarrett.com/guest-columnist/.

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Comments (3)

Ms. Otto's is a

…somewhat self-serving, somewhat partisan voice.

And one with which I'm wholly in agreement on this issue.

Privatized audits are, and will be, no less expensive than those done by the state,, and in the process will be less transparent, with those performing the audits unaccountable to the citizens of the jurisdictions being audited. There's no reason to privatize this constitutionally-mandated state government function beyond petty partisanship and—as has become far too common among Republicans in the legislature—an ideologically-driven desire to rule rather than govern, through vindictiveness where facts and reason won't support their actions.

Lawsuit

Otto states that her lawsuit is at the Court of Appeals. She, however, fails to mention why it is at the Court of Appeals, so I will explain why: she lost. The district court found that the change in the law - passed by the legislature and signed by the governor - was constitutional. The court granted summary judgment for the defendants and dismissed the case.

Otto is appealing, but the result is going to be the same because her lawsuit is completely frivolous. I am sympathetic to her position - I would not have supported the change in the law. But engaging in a taxpayer-funded frivolous lawsuit is not the answer. More than $250,000 in public money has been wasted on this so far, and that number will grow as Otto continues her appeals.

If I was writing the headline for this piece, I would drop the word "muzzling."

Frivolous?

Of all the MinnPost articles of the past week, this one has kept playing with my mind.

Pat Terry's comment seems to have played a roll in that:

Is the Auditor's case a frivolous law suit? A completely frivolous law suit?

(Thanks, Pat . . . I think.)

I don't know the legal technicalities involved so, given the way legal technicalites often seem to work, that could be the case. And while I generally understand Pat's point of view on that (assuming Pat's aware of whatever those "technical aspects" may be) I don't think it's frivolous at all.

Or, to maybe put that more "correctly," I think the ISSUE, or the "real case" behind whatever the "official/technical case" may be, is anything BUT frivolous.

Part of the "playing with my mind" this article (and Pat's comment) forced was a look into, and thinking about, the meaning and "probable intent" of these words:

"Constitutionally Appointed Office."

Leaving any particular individual out of it (Rebecca Otto or any other past or future State Auditor) the State Auditor position is a Constitutionally Appointed Office.

On the face of things, that says to me that there is something essential and important enough about those Offices that they were specifically included in the state's Constitution.

There are just five of those Offices: The Governor; the Lieutenant Governor; the Secretary of State; the Attorney General; and the State Auditor.

And all of those Offices are part of the executive branch of our three-branch form of MN government.

In a nutshell, what happened in the 2015 legislative session was a blatant attack on the State Auditor's Office by the legislature. Whatever the motivations for that attack (and, for anyone familiar with the 2015 session, those motives were clear, sleazy and "skillfully engineered"), the Democratic Senate Majority Leader (Tom Bakk) teamed up and "made a deal" with Senate Republicans to "deliver the votes" necessary to deliver a sledgehammer-blow to the State Auditor's Office.

www.minnpost.com/politics-policy/2015/05/otto-suspects-political-motivat...

That assault is being continued in this session and what it amounts to is a Complete Gutting and, for all practical purposes, destruction OF that Constitutionally Appointed Office.

"Article 3, section 1, of the Minnesota Constitution sets forth the separation of powers in this state and provides: The powers of government shall be divided into three distinct departments: legislative, executive, and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution."

I suspect this is where those "legal technicalities" come into play. But, speaking as just one average Minnesota layperson, the 2015 assault (the "Range delegation vendetta" combined with the ever-present Republican "Government is the problem" fetish) and this year's continuation of that via massive and draconian House and Senate "Government Operations" budget cuts to the Auditor's Office, appears to be nothing less than a political and ideological assault on one branch of government by another which, to me, is a clear and undeniable violation of that part of our Constitution.

Politicians and attorneys can slice and dice the technicalities involved any way they can dream up, but the real world reality is the legislative branch has decided to de-fund a Constitutionally Appointed Office that is an integral part of the executive branch. And the reality is, if an Office (or business, or school, or whatever) has no money to run on, it is, for all Practical Purposes, existent in name only.

What might happen, for example, if one party controlled the legislative and executive branches and decided that they didn't like the Secretary of State's Office approach to online and same-day voter registration, "no-fault" absentee voting, the "inefficient and wasteful" number of poling places in the state and a few other electoral policies that Constitutionally Appointed Office had put in-place?

Would it be Constitutional for that legislature to write and pass a set of laws that the Governor signed that said it was no longer legal for any taxpayer money to be dedicated to those and other activities the Secretary of State's Office was engaged in?

Would it be Constitutional for those people to cut the Secretary of State's budget (and, in turn, its staff) by, say, 50% or 60% based on the idea or "grounds" that the funding would no longer be needed because all those "electoral duties and responsibilities" had been "returned to the counties"?

And what if the Attorney General did something the legislature didn't like or thought was Big Government overreach?

Let's see . . . Which Constitutionally Appointed Offices would be left (to gut)?

Just the Governor and Lieutenant Governor.

Hmmmmmmm. What have THEY been up to lately that the legislature's "Government Operations" committee might not be happy about?

I'd be among those who would call that kind of thinking a "conspiracy theory" if it wasn't so clear (to me, anyway) that that's exactly what is happening when it comes to the topic of this article which is why I don't think the issue or law suit is frivolous at all.