Point/Counterpoint: Lawmaker refutes, says inspector general role differs from auditor’s

Numerous instances of official misconduct, abuse of power and lack of effective oversight of government agencies have plagued Delaware in recent years. Both current and former elected officials have been indicted on felony criminal charges while in their leadership roles at government agencies in just the past few years, and long-standing issues in the state’s criminal justice and prison systems, as well as environmental enforcement, have gone unaddressed, despite the existence of an elected auditor of accounts.”

Editor’s note: The following was sent to Kathleen McGuiness and the Delaware Office of Auditor of Accounts in response to a letter from the auditor sent to the Delaware General Assembly on May 17 and again June 16. 

This is the response to the auditor’s allegations that deliberately distort the differences in responsibilities, obligations and authority between the auditor general’s office and the proposed Office of the Inspector General being created by House Bill 405.

The Delaware Office of Auditor of Accounts is a government agency controlled by a partisan elected official whose statutory duties are solely defined as financial audits and post-audits, as provided in Title 29, Chapter 29, § 2906, “Duties of the Auditor of Accounts.”

While the elected state auditor may sometimes voluntarily choose to expend the office’s budgeted funding for more extensive investigations during financial audits, the statutory language regarding the state auditor is clear regarding the required scope of their audits in Title 29, Chapter 29, § 2907, “Scope of audits”:

“(a) The audits shall be sufficiently comprehensive to provide, but not limited to, assurance that reasonable efforts have been made to collect all moneys due the State, that all moneys collected or received by any employee or official have been deposited to the credit of the State and that all expenditures have been legal and proper and made only for the purposes contemplated in the funding acts or other pertinent regulations.

“(b) The audits shall be made in conformity with generally accepted auditing principles and practices.”

HB 405 provides for an independent and, importantly, nonpartisan inspector general, who is selected by an independent blue-ribbon panel of various community stakeholders. The claims by the auditor of accounts that “potential auditees or subjects of investigations” and “members of the political class” would “hand select the individual responsible for their oversight” is simply false and patently ignores the members of the public who represent the majority of the positions on the Selection Panel.

There are other significant differences between the Delaware auditor of accounts and the proposed inspector general under HB 405.

Unlike the state auditor, the inspector general under HB 405 would be:

• A nonpartisan office that does not engage in partisan elections.
• Limited to three five-year terms.
• Required to remain neutral and impartial during investigations.
• Able to be removed from office for misconduct and other statutorily defined cause for removal. The governor must recommend the removal, and it must be approved by two-thirds of both the House of Representatives and Senate.
• Able to conduct independent and nonpartisan investigations of the General Assembly, the Department of Justice and the auditor of accounts. The inspector general would also be empowered to conduct investigations of a broader set of state agencies, as well as individuals and entities that have a business relationship with any state agency.
• Required to have demonstrated experience in oversight and investigations and to hire qualified staff who must undergo relevant training within three years of their hiring.
• Required to investigate state agencies for “fraud, waste, abuse, mismanagement, corruption, or any other conduct that harms the public interest.” The inspector general is not limited to financial audits and post-audits or other investigations that relate to fraud or financial expenditures. The broad scope of the inspector general’s investigations would be required by statute, rather than based on the voluntary interpretation of an elected official.
• Required to maintain a telephone number, website, email address and mailing address to receive complaints. The inspector general would be required by statute to implement these measures, rather than the voluntary process followed by the auditor of accounts for its financial auditing responsibilities.
• Required to respond to every complaint received alleging fraud, waste, abuse, mismanagement, corruption or any other conduct that harms the public interest.
• Required to issue a public decision at the conclusion of every investigation it performs. The inspector general could issue any recommendations relevant to its investigation.
• Required to keep investigative documents confidential and protect the identity of whistleblowers and anyone else who files a complaint.

Numerous instances of official misconduct, abuse of power and lack of effective oversight of government agencies have plagued Delaware in recent years. Both current and former elected officials have been indicted on felony criminal charges while in their leadership roles at government agencies in just the past few years, and long-standing issues in the state’s criminal justice and prison systems, as well as environmental enforcement, have gone unaddressed, despite the existence of an elected auditor of accounts.

For the limited scope and statutory requirements of the auditor of accounts, please see delcode.delaware.gov/title29/c029/index.html.

The fact is that a state auditor and an inspector general need to be separate entities because they have significantly different responsibilities and purposes. Routine financial auditing and investigations relating to financial abuse or fraud are important functions that are properly in the domain of the auditor of accounts.

An inspector general is needed to provide oversight — and investigations, when necessary — of state agencies beyond their financial performance. These functions require very different skills than financial audits performed by the state auditor and staff.

Changing the statutory language for the auditor of accounts to conform to the extensive differences in the proposed inspector general under HB 405 would create an entirely new entity and undermine the importance of the state auditor’s current role. In addition, without amending the Delaware Constitution, no statutory changes would be able to transform the auditor of accounts into the independent and nonpartisan inspector general proposed by HB 405.

Rep. John Kowalko is a Newark Democrat.