In yesterday's post, I mentioned that the Milton Marks “Little Hoover” Commission on California State Government Organization and the Economy oversees the Bureau of State Audits. See Government Code Sections 8542 and 8543.
The Bureau of State Audits traces its roots back to 1955 when the legislature created the Joint Legislative Audit Committee and the Office of Auditor General. Following the adoption of Proposition 140, the legislature severely reduced funding of the Auditor General. Then in November 1992, the people declined to approve Proposition 159 which would have established an independent office of the Auditor General. This was a problem for the state because it is the recipient of billions of dollars in federal funds. The Single Audit Act of 1984 (P.L. 98-502), Single Audit Act Amendments of 1996 (P.L. 104-156), and OMB Circular A-133 ("Audits of State, Local Governments, and Non-Profit Organizations") impose audit requirements for ensuring that these funds are expended properly.
The late Senator Ken Maddy introduced SB 37 in 1992 which created the Bureau of State Audits under the "direction" of the Little Hoover Commission. The head of the head of the bureau is the State Auditor, who is appointed by the Governor from a list of three qualified individuals nominated by the Joint Legislative Audit Committee by a vote of at least a majority of the committee membership from each house of the legislature. Government Code Section 8543.2. Apparently, this was done so that the State Auditor would be exempt from the Civil Service pursuant to Article VII, Section 4 of the California Constitution. Interestingly, the power of removal resides not with the appointing power (the executive branch) but with the legislative branch. Government Code Section 8543.6. This can be problematical from a separation of powers perspective. As the U.S. District Court in Synar v. U.S., 626 F. Supp. 1374, 1401 (D. D.C. 1986) aff'd Bowsher v. Synar, 478 U.S. 714 (1986) observed:
Once an officer is appointed, it is only the authority that can remove him, and not the authority that appointed him, that he must fear and, in the performance of his functions, obey. Giving such power over executive functions to Congress violates the fundamental principle expressed by Montesquieu upon which the theory of separated powers rests: "When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehension may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner." Montesquieu, The Spirit of Laws, vol. I, bk. XI, ch. 6, at 152 (London 1823). See also The Federalist No. 48, at 327 (J. Madison) (P. Ford ed. 1898) ("[N]one of [the branches] ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers.").
If you want the State Auditor to conduct an audit, then you either need to convince the Joint Legislative Audit Committee to request one or sponsor legislation requiring one. If you have information concerning improper governmental activities, you may report it to the State Auditor pursuant to the California Whistleblower Protection Act, Government Code Sections 8547 et seq. The State Auditor investigates complaints and may refer allegations to state agencies. Government Code Section 8547.6. State agencies that receive a referral are required to conduct investigations. All of this suggests that performance of the State Auditor's functions involves seeing "that the law is faithfully executed" within the meaning of Article V, Section 1 of the California Constitution.
Thus, the State Auditor's exercise of executive powers and the Little Hoover Commission's oversight of the State Auditor's performance also give rise to separation of powers concerns. The fact that the legislature established this structure as a useful means to address the problem of auditor independence does not necessarily save it. As Justice Burger noted in INS v. Chadha, 462 U.S. 919, 944 (1983):
[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. Convenience and efficiency are not the primary objectives — or the hallmarks — of democratic government. . . .
Finally, I note that Senator Rubio has a bill, SB 1395, that would rename the Bureau of State Audits as the State Auditor's Office. I suspect that there is more than just a name change motivating this legislation.
Blog updated 5/2/2012