State Auditor Diana DiZoglio threatened to pursue legal action against the state Legislature Wednesday as she tries to audit that branch of government, escalating a feud with Democratic lawmakers who have refused to participate and setting up a complicated legal dispute.
But whether DiZoglio, the House, and Senate actually end up before a judge remains unclear.
The issue appears to hinge at first on a sign-off from Attorney General Andrea Campbell, who is responsible for representing state agencies before the courts. That could be the Auditor’s office, or it could be the Legislature. It likely can’t be both.
DiZoglio sent a legal memo earlier Wednesday asking for the state’s top prosecutor to “support our effort.”
A former member of both the House and the Senate, DiZoglio said state law, historical precedent, and an “informed analysis” of the Constitutional separation of powers doctrine backs an audit of the Legislature that goes beyond just finances and spending.
DiZoglio is also looking for details on active and pending legislation, processes for appointing committees, adoption and suspension of rules, and policies and procedure of the Legislature.
With legislators not complying, DiZoglio said she has asked Campbell to weigh-in on potential legal action. DiZoglio said she is required to first submit a legal memo to the attorney general “outlining what our reasons are for seeking litigation.”
“We do not wish to go to court,” DiZoglio said inside her State House office. “We have repeatedly offered to have conversations, requested compliance with this audit, requested that the Legislature see the value and opportunity in working alongside our office to help increase access for the voters.”
Making a complicated legal scenario more blurry, it is not clear what would happen if Campbell declined to “support” DiZoglio in the legal action she is threatening.
“We’ll cross that bridge when we get to it,” DiZoglio said, adding that her office has not used taxpayers dollars to hire outside attorneys.
A Campbell spokesperson did not immediately respond to a request for comment. DiZoglio said Campbell “indicated that she is certainly going to be reviewing these matters as soon as possible.”
A spokesperson for House Speaker Ronald Mariano declined to comment and referred questions to a letter Mariano sent to DiZoglio in March, weeks after the audit was announced.
“That your office has the legal authority to conduct an audit of the General Court is a claim entirely without legal support or precedent, as it runs contrary to multiple, explicit provisions of the Massachusetts Constitution, and is wholly unnecessary as the public currently has full and ready access to the House’s financial information,” the speaker wrote in a March 24 letter.
A spokesperson for Senate President Karen Spilka said the auditor’s office “lacks the statutory and constitutional authority” to audit the Legislature. Spilka first aired that position in a March 24 letter to DiZoglio.
“A plain reading of [state law] makes clear that the General Court is not among the entities over which the Auditor has authority,” Spilka wrote. “Moreover, the Massachusetts Constitution guarantees that the Senate and House of Representatives have exclusive authority to manage their own business and determine their own internal rules of proceedings.”
In the legal memo, DiZoglio argues the Legislature is considered a “department” of the commonwealth, giving the Office of the State Auditor power to audit the two legislative branches. DiZoglio pointed to the state’s Constitution, which describes the Legislature as a “legislative department.”
A “notable absence” of an explicit exclusion related to the Legislature in state law “is a clear indication that the intent of the Legislature was to include, and not exclude, the legislative department among the entities that the Office of the State Auditor has authority to audit,” the legal memo said.
DiZoglio said there is a “historical practice” of the state auditor auditing the Legislature. She pointed to one audit of Legislative Information Services — the information technology team for the Legislature — released in 2006.
The audit examined Legislative Information Services’ virus protection activities between Oct. 9, 2003, and Dec. 8, 2005.
“Our examination focused on a review of controls related to policies, procedures, and use of software tools to prevent and detect viruses and unauthorized intrusions, assess the level of risk of viruses, report on the occurrence of a potential virus, and to implement corrective measures,” an introduction of the audit said.
Legislative audits are also contemplated by the state Constitution, DiZoglio said, pushing back on the idea that an audit would violate basic separation of power principals.
“An audit of the Legislature reflects the will of the people, not the circumvention thereof,” DiZoglio wrote in the legal memo. “As mentioned previously, the State Auditor is a constitutional officer who is directly elected by, and thus ultimately responsible and accountable to, the people of the Commonwealth.”
The legal memo also argues that there are public policy considerations that favor an audit of the House and Senate. The Legislature itself also “routinely exercised” its oversight and audit authority over the executive and judicial branches of government, DiZoglio said.
“I learned that sunlight is the best disinfectant and it is beyond past time that Beacon Hill’s dirty windows get opened and cleaned to light that sunlight in,” DiZoglio said. “… It’s crystal clear that we have the authority to audit the Legislature.”