A Wyoming legislative committee voted Wednesday have one of the governor’s agencies scrutinize the legislative branch’s staffers and researchers, but not before state senators argued at length about whether that violates the separation of powers.
Sen. Darin Smith, R-Cheyenne, made a motion in Cheyenne during a meeting of the legislative Management Audit Committee to have the Wyoming Department of Audit run a performance review of the Legislative Service Office (LSO).
The LSO is a nonpartisan group of staffers who research topics for legislators and committees to inform the lawmaking process.
The Department of Audit is an executive-branch agency. It has legal authority to scrutinize the performance of towns and local governments, but can only audit the Legislature upon request, said department Director Justin Chavez.
‘Sweep Our Own Porch’
With some minor quirks addressing constitutional and statutory concerns, Smith’s motion passed on a 9-2 vote, with the committee’s only two Democratic members voting against it.
“I’m certain there’s nothing fishy going on at the LSO, but we have to sweep our own porch before we can look at everything else,” said Smith.
Sen. Chris Rothfuss, D-Laramie, raised multiple objections of Smith’s motion, saying it violates the appropriate separation between legislative and executive branches of government. The argument grew heated enough that at one point, Rothfuss asked the committee chair for permission to address Smith directly, rather than sending indirect comments through the chair as usual.
“We don’t hire the executive branch to run a performance audit of whether the executive branch thinks the Legislature is doing things right,” said Rothfuss. “It doesn’t make sense. It’s not their mission, and it’s not their chain of command.”
Rep. Jayme Lien, R-Casper, countered, saying contracting the Department of Audit seems like the transparent option.
If transparency is a concern, LSO can hire an external firm to run a performance audit, Rothfuss said, adding that he has no problem with the audit itself.
An LSO staffer noted during the meeting that LSO contracts for financial audits every two years, and said legislators can access the most recent report on the legislative website.
But that’s a financial audit, not a performance audit, the staffer clarified under Smith’s questioning.
Smith said it may be valuable to judge LSO's performance now that the Management Audit Committee is considering legislation that could add more staffers to it. That legislation, discussed earlier in the day Wednesday, could give the legislature extra power to pre-approve executive-branch agency rules before they're adopted.
The Inverse Of That
Legislators turned to a state law that describes the duties of the Management Audit Committee, which include that it can direct the LSO to audit agencies.
The statute does not grant authority for the committee to do the inverse of that: directing an executive branch agency to audit the LSO.
Perhaps the answer, said Committee Chair Christopher Knapp, R-Gillette, is to direct the LSO to ask the Department of Audit to scrutinize the LSO.
Rothfuss wasn’t swayed by that workaround.
He urged the committee to wait until its next meeting and ask the governor whether he’d be comfortable with the arrangement and contemplate the ramifications more deeply.
That’s especially important, added Rothfuss, since the gesture wasn’t on the committee’s public-facing agenda ahead of its meeting.
“I don’t know why all of a sudden we’re operating at the speed of now instead of the speed of government,” he said. “Particularly when this might be one we can reflect on.”
Knapp had floated the notion that it may be cheaper to use the Department of Audit than hire an external firm. Smith said that’s not what drove his motion, though.
“This is about checks and balances. This is about embracing accountability,” said Smith. “I don’t get the argument that we should wait.”
The committee only meets three times during the interim, Smith noted.
On Thursday, Rothfuss called the move an “abnormal application” of the law.
“We need to get that group of incredible students from up in Sheridan that just went to nationals for We The People and performed very well, to come to Management Audit and explain to the committee how separation of powers actually works, and how our government process actually functions,” he said.
Smith countered that in a Thursday text message.
"Senator Rothfuss is a smart man and his quote is funny. I can't help but laugh, however," wrote Smith. "He is incorrect on this. The Management Audit Committee did nothing wrong (and) is finally starting to fulfill its auditing purpose, and we are starting with our own house."
The beauty of Wyoming's governmental system, continued Smith, "is checks and balances. The duty and authority to audit is placed explicitly on the legislature by the Constitution, and the purpose of the Management Audit Committee is to audit! This should be a nothing burger."
Smith's reference to the Constitution, he later clarified, was of Article 4 Section 14, which says:
"The legislature shall provide by law for examination of the accounts of state treasurer, supreme court clerks, district court clerks, and all county treasurers, and treasurers of such other public institutions as the legislature may prescribe."
Clair McFarland can be reached at clair@cowboystatedaily.com.
