Should the Legislature be audited?
No, the Mass. auditor cannot audit the Legislature
Having been the Massachusetts state auditor for 12 years, I know that audits can be effective tools for identifying misspending and improving government programs — but audits are not always the right means to achieve governmental accountability. As a way of making the conduct of the Legislature more “transparent,” the very rules that auditors must follow disallow audits of the decision-making processes of the legislative branch. That’s why I oppose Auditor Diana DiZoglio’s ballot petition to audit the Legislature, and I urge voters to do so as well.
First, it’s important to understand that this ballot question is not about financial auditing. Audits of all financial accounts, including those of the Legislature, are conducted by private audit firms and are reported to the state comptroller, not the state auditor. The role of the Massachusetts state auditor is to conduct performance audits, a particular type of government auditing in which auditors determine whether state agencies are using and protecting state resources in accordance with the rules that govern them and suggest steps to improve performance.
State law requires that the auditor’s office comply with auditing standards issued by the federal Government Accountability Office; compliance is reviewed and rated every three years. According to the GAO’s Yellow Book, the proper subjects of audits are government programs authorized by the Legislature to serve public purposes; they do not include the internal workings of the legislative branch of government. This is why, according to the National State Auditors Association, no state auditor has the power to pass judgment on how Senate and House members, for example, select their leaders, assign members to committees or office space, conduct their policy deliberations, or decide what records to make public.
Also, the Yellow Book requires auditors to use objective criteria in evaluating the activities of an audited entity. Criteria are derived from relevant laws, regulations, policies, technical standards, contract terms, and benchmarks for the entity. It’s an auditor’s responsibility to ask if an agency is following the rules that govern its behavior. Since the Massachusetts law enables the Legislature to govern itself, there are no objective criteria with which an auditor can assess its performance. Subjective value judgments, even judgments concerning something as appealing as “transparency,” have no place in an audit.
The role of a state auditor is to be an independent, unbiased source of truth. Leading by example is how an auditor convinces errant agencies to change their ways. Ignoring standards that govern her own office and letting the cloud of politics give even the appearance of a conflict of interest overshadow the office. Ensuring audit integrity is the chief goal of the Yellow Book. Its standards do not just dictate how auditors conduct audits; they also detail how auditors conduct themselves.
Auditors must practice “(w)ith an attitude that is objective, fact-based, nonpartisan, and nonideological with regard to the audited entities and users of the report.” Further, “(g)overnment information, resources, and positions are to be used for official purposes and not inappropriately for the auditors’ personal gain or in a manner contrary to law or detrimental to the legitimate interests of the audited entity.”
Audits must be approached without preconceived goals or self-interest in the outcome. They are to be used as tools for improving agency performance, not as weapons to achieve political goals, but politics are at the root of this initiative. DiZoglio, who is also the sponsor of this ballot question and a former member of the House and Senate, appears to use her personal story of perceived political mistreatment by her former colleagues as a rationale for her efforts. Being excluded from prominent roles in the Legislature and unable to advance her policy goals, including outlawing confidentiality agreements in cases of employee termination, she has been a vocal critic of the Legislature. She is entitled to do that. She may even be right. This advocacy, however, renders implausible any claim to the legally required objective and non-ideological attitude. Her goal is to gain the power to change the operations of another branch of government, and the considerable financial contributions to the committee supporting the ballot measure from her campaign funds represent undeniable self-interest and a literal investment in a pre-determined outcome.
As a former legislator, DiZoglio’s aspiration is also impeded by her “close association” with the subject of the audit, the Legislature. The existence of such a relationship is deemed by the Yellow Book a “threat of bias,” and the rules require a complete detachment by an auditor from any role involving such audits. A cooling-off period is advised before an auditor may have any role in an audit of that entity. This rule is one with which I myself had to comply. Having served in the Patrick administration prior to my service as auditor, I refrained for three years from any involvement in audits of agencies which had been under my jurisdiction. Having just left the Legislature in 2022 after serving almost 10 years, DiZoglio shouldn’t initiate any audits of the Legislature until a cooling-off period has passed, which would take years.
Government accountability is essential to the public trust, but this effort runs counter to that goal.