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Audit bill would protect information, but force state employees to comply – Daily Montanan [1]

['Darrell Ehrlick', 'More From Author', '- January']

Date: 2023-01-02  

Montana lawmakers want state employees to be a bit more helpful when it comes to auditing.

One of the first bills ready to go as the Montana Legislature kicks off its 2023 session are rules that received unanimous bipartisan support from the standing Legislative Audit Committee. The proposed legislation, LC 4126, would tighten rules for the auditing process, including adding penalties for employees who do not comply with audits.

Montana has the Legislative Audit Division of state government attached to the Legislature. Those legislative auditors are tasked with reviewing programs and departments within state government on a recurring schedule. Legislative Audit Division employees perform a variety of audits, including financial reviews as well as performance reviews to make sure the state’s programming is running and budgeting is being spent according to the will of the lawmakers.

However, during the past decade, auditors have been increasingly frustrated as requests to state employees for information have been delayed or sometimes ignored, leading to delay in the legally required auditing process. Currently, the Montana Audit Act doesn’t have penalties for state employees or departments that refuse to comply with the auditor.

While the Legislative Audit Division did not call out any departments by name, audits involving the Montana Department of Justice or the Department of Public Health and Human Services have previously noted access challenges.

The new bill, LC 4126, would make it a misdemeanor if a state employee refuses a request, and the employee could lose his or her job because it would be classified as “misconduct.”

Montana’s Official Misconduct code says that “a public servant convicted of the offense of official misconduct shall be fined not to exceed $500 or be imprisoned in the county of jail for a term not to exceed six months, or both.”

While officials from the Legislative Audit Division said while no audit has been completely stymied by stubborn employees, several have been stalled or may have been incomplete because of the lack of cooperation.

The bill, approved and forwarded by the Legislative Audit Committee during the interim in December, is being carried by Sen. Tom McGillvray, R-Billings.

Another change to the law would also make materials under review during the auditing process confidential until after the release of the audit. Deb Butler, the chief legal counsel for the Legislative Audit Division, said at the December meeting of the Legislative Audit Committee the change simply codifies in writing what auditors have always understood: Materials collected by the auditor during the process are confidential until after the report is released. However, officials from the division said this change would not preclude the release of otherwise public information by agencies other than the auditor.

“The law is silent as to the confidential nature of the audit,” Butler said.

Even if the bill successfully wins the backing of the legislature, Legislative Auditor Angus Maciver told the Daily Montanan that the penalties are there to break an impasse about releasing information.

“The mission of the Legislative Audit Division is to increase public trust in state government. Over the past decade, we have seen increased attempts by state agencies to question, delay or frustrate our ability to access information,” Maciver said. “Without full access to records, information and data, we cannot independently verify and assess agencies’ work on the public’s behalf. Blocking or delaying audit access is contrary to the public interest and government transparency. Again, the draft language aims to protect the voice of state employees while holding those in leadership positions accountable.”

Butler told the committee that the law was based on a review of peer states. She noted that the penalty provisions are rarely used, but effective as leverage.

“This provides an enforcement mechanism for our access rights that does not currently exist in Montana state law,” Maciver said.

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