Paul Hammel
LINCOLN — Nebraska Attorney General Mike Hilgers stood his ground Monday amid criticism of his recent legal opinion that has blocked access to information for two legislatively created inspectors general offices.
The non-binding opinion, issued in August, stated that the inspectors generals of corrections and child welfare unconstitutionally infringed on the powers of executive branch agencies by having unfettered access to their computer records and properties.
During a panel discussion at the University of Nebraska College of Law, State Sen. Danielle Conrad of Lincoln called the legal opinion “a political stunt” that has blocked the State Legislature from its duties overseeing operations of state agencies and as a check and balance on executive powers.
Can’t do our job
Jennifer Carter, the Inspector General of Child Welfare, said that since the August opinion, state agencies have obstructed her office from getting information about deaths and cases of abuse within the state child welfare system, blocking her statutory obligation to invest and report on the performance of state agencies in such instances.
University of Nebraska law professor Anthony Schulz also rapped Hilgers, saying that the 38-page opinion didn’t rely enough on the Nebraska Constitution, which is “dramatically” different than the U.S. Constitution that provided most of the basis of the opinion.
Hilgers, during a panel discussion with the trio at the University of Nebraska-Lincoln College of Law, joked that he didn’t realize he had so many “friends” of his opinion.
This is not a constitutional question. It's a political stunt that's beneath the office of the Attorney General
– State Sen. Danielle Conrad of Lincoln
But, he said, “any fair reading” of the statutes that set up the inspector general offices “makes clear” that their powers violate the separation of powers between the legislative and executive branches.
“These are powers that go far beyond what legislators themselves have,” Hilgers said.
The panel discussion went past its allotted hour and filled to overflowing a lecture hall at the law college. More than 75 people listened to the discussion, including the state’s Corrections director, Rob Jeffreys, who had asked for the legal opinion, at least three state senators, and Gov. Jim Pillen’s chief of staff, Dave Lopez.
Just look at the statutory scheme ... any fair reading of it ... makes clear that this goes too far.
– Attorney General Mike Hilgers
The legal opinionhas become more controversialsince its issuance because the inspectors generals have been blocked from obtaining information from state agencies, including information about an inmate’s suspicious death at the Tecumseh State Prison last month, and background on the near starvation of a state ward.
The two offices were created over the last decade due to problems within state prisons and the state welfare system, problems that include two deadly riots at the Tecumseh prison and the hiring, and later firing, of Saint Francis Ministries to oversee child welfare, even after an extra infusion of $110 million in state funding.
Near unanimous support
Conrad, who served in the Legislature when the inspector general offices were created in 2012 (child welfare) and 2015 (corrections), said the bills won the nearly unanimous support of state lawmakers and relied on a 1981 Attorney General’s legal opinion that buttressed the Legislature’s authority to oversee state operations via its state ombudsman’s office, which includes the inspectors general.
“This is not a constitutional question,” the state senator, a lawyer, said, calling the political implications of the August opinion “beneath the office of the Attorney General.”
Hilgers’ office could have followed up its legal opinion by filing a lawsuit to clarify the issue — as it did in a recent dispute over some criminal justice legislation — but didn’t, Conrad said.
Hilgers later said they were different issues.
He said that his office found that Nebraska was the only state in which a legislature had set up an inspector general’s office. Typically, such inspectors reside under the executive branch, thus removing the issue of separation of powers.
Other ways to obtain information
Hilgers, a former Speaker of the Legislature, said state lawmakers have other options to obtain needed information from state agencies. One is its subpoena power, he said, which requires approval by the Legislature, unlike the investigative powers given to the inspectors general.
Another, Hilgers said, would be having the Performance Audit Committee of the Legislature conduct audits of corrections or the Department of Health and Human Services.
Carter, however, said doing a performance audit, which a panel of state lawmakers must approve, would inject politics into such inquiries.
The inspector general offices were set up, she said, to provide independent investigations into whether state agencies and actors were performing as the Legislature expected, free of political motives. Access to agency computer records was allowed, Carter said, as a convenience so that agencies didn’t have to deliver boxes of documents.
She added that inspectors general cannot direct agencies to do anything, but said they can lead to improvements in the functioning of state agencies by “shining a light” on a problem.
What’s next for this controversy?
Conrad said she expects several bills to be introduced during the 2024 session to clarify the investigative powers of the inspectors general.
She said the inspectors have been essential in providing information to state lawmakers, rattling off a handful of recent problems reported in the child welfare and state prison systems.
“And the attorney general and the executive branch have not lifted a finger to address those issues,” Conrad said.