[Part 2] Oregonians Deserve More Accountability
As we see in D.C., the lack of a combination of the proper tools and sufficient will to enforce oversight has serious consequences.
If you haven’t read Part 1 of this post, please find it here.
Our country’s founders recognized that democracy works better when governance includes three sources of authority: legislative to make laws, executive to implement them, and judicial to interpret them. This division of labor promotes accountability to the people through a system of checks and balances.
The Oregon State Legislature has a duty to make sure that the Executive Branch, led by the Governor, implements laws effectively and fairly and ensures that laws work for the people as intended. This obligation includes protecting the public from governmental fraud, waste, and abuse. It requires both the will to do so and the tools to make it happen.
But even if legislators find the will to hold the Governor (who may be a member of their party) and her agencies accountable, what tools do we have to hold executive officers accountable for our tax dollars when they refuse to cooperate? In Washington, D.C., we’ve seen how hard it can be to get answers out of even a former executive who is determined to bury the bad news.
The answer lies in asking the right questions, having and using the right tools to enforce legislative authority, and working with partners to get the facts.
Oversight Committee Hearings – Asking the Right Questions
Effective oversight requires asking hard questions. Every agency reports to the Legislature biannually to testify in support of its budget. The undisputed champions of oversight in these hearings are Senator Betsy Johnson (D) and Representative Greg Smith (R). Sen. Johnson used her role as co-chair of budget-writing Joint Committee on Ways and Means to demand answers about troubled programs. Rep. Smith, chair of the General Government Subcommittee of Ways and Means, always does his homework, finds the areas of concern, and asks probing questions. He also concludes each reporting interview by asking, “Is there anything I haven’t asked that might be embarrassing if brought to light?” – a question that has caused many a department head to squirm in the witness seat.
Despite such positive examples, the cozy nature of Salem politics works against getting meaningful answers to these questions. First, there’s real pressure to avoid embarrassing a Governor (or any other executive) from a legislator’s own party. Second, department heads may simply choose not to answer a question, although they rarely do so outright. Third, the Legislature lacks the tools to enforce oversight.
Enforcement – Failing to Use Effective Tools
The case against former Rep. Nearman brought the lack of meaningful enforcement tools into the light. The Oregon State Police had completed an investigation and forwarded it to the Marion County District Attorney for prosecution. However, the DA refused to share it with the Legislature for our disciplinary process. When I asked about using our subpoena power to help do our job, House leadership refused because such stern enforcement was seen as inconsistent with our perceived culture of accommodation at any cost.
Unwilling to accept “failure to develop and use effective tools” as a definition of “civility,” I looked into subpoena enforcement, hoping to be able to convince my colleagues to issue a subpoena. I quickly found that the law does not provide a timely enforcement mechanism for compelling testimony or producing documents. Enforcing a subpoena would take longer than the entire legislative term! I drafted legislation to remedy that problem, but the House Rules Committee declined to give the bill a hearing.
Other tools could likely increase accountability, but there’s no will to employ them. In theory, the Legislature may refuse to pass an agency’s budget until it provides answers to legislators’ questions. In practice, the Legislature has never used this tool. At most, agencies will be given a one-year budget and required to report back on progress during the next session. This self-limitation exists because the Legislature is part-time and does not often call itself back into session to exercise oversight.
As we see in D.C., the lack of a combination of the proper tools and sufficient will to enforce oversight has serious consequences. It allows executive officers to act with impunity and witnesses to refuse to cooperate. The people of Oregon deserve a Legislature that has the tools to exercise oversight in their name.
Working Together – Partnerships in Public Service
The toothlessness of legislative oversight can be somewhat offset by effective partnerships with other agencies. For instance, when the Legislature declined to write an audit of the troubled rental assistance program into the bill extending it, I was able to convince fellow legislators to ask for an audit from the Secretary of State’s Office. The nationally-recognized staff there have a long history of conducting fair and accurate performance audits. Further, as individually-elected officers, both the Attorney General and the BOLI Commissioner have the responsibility to conduct investigations into matters under their purview.
To increase accountability, BOLI Commissioner Val Hoyle recently suggested reducing job protection for leaders in the executive branch, which exceed those for line workers, but legislative leadership and the Governor declined to support this proposal.
Finally, federal and local governments will often partner with legislators to get the answers the people deserve. We could and should make better use of these options.
Oregon is overdue for an examination of executive oversight. The Secretary of State’s Audit Division is not a true Inspector General with wide-ranging powers of investigation. Whistleblowers in state government often report retaliation from their supervisors, suggesting that they need better protections. And, the fact that all statewide elected officeholders are from the same party and often have worked together for decades dampens their enthusiasm for oversight that may prove embarrassing to their colleagues.
The people of Oregon should be able to elect qualified candidates from any party without being concerned that the rules in place cannot protect them from weaknesses that disrupt the system of checks and balances intended to make our three-part democratic system work effectively, no matter which party holds a majority of offices.
Conclusion
Effective government oversight should be a goal shared by all public servants. Unfortunately, the unwillingness to ask hard questions of one’s own party and the unwillingness to forge and use legislative tools make state government a low-accountability environment. We have a lot of work to do to change the culture of impunity into one of accountable public service.
Marty Wilde represents House District 11 in the Oregon State Legislature.
photo credit: "Black and White Gavel in Courtroom - Law Books" by weiss_paarz_photos is licensed under CC BY-SA 2.0
Thank you Rep. Wilde.
In anthropologist David Graeber’s book on Bureaucracy, he says: “Bureaucratic procedures… have an uncanny ability to make even the smartest people act like idiots” To his mind, many people, because of the nature of their job (not because they are bad or not intelligent) end up ticking boxes, which takes away their will to be imaginative, playful and creative. In other words, bad government hurts not only the public, but the people working in it.
This creativity is what we need in our state government and agencies. We need people who think: that’s not working, how could we do that better, more efficiently, to serve the people we’re supposed to serve. In education right now, we’re seeing billions in relief funds either sit and not be used to address student learning loss, or being spent on things like floor scrubbers. When advocates have come forward to talk about immediate ways to provide high dosage tutoring, or ways to train teachers quickly to address reading, there’s always an excuse. The people we’re working with aren’t bad, but the systems isn’t serving them well either. People working for agencies should want more oversight and responsive leadership. No one wants a bullshit job (another Graeber idea) where they feel like what they do doesn’t really matter. But in order to do that, people need to be held accountable.
The legislature can play a role—but not if all they do is form more committees and write reports that only people like me read.
ODOT is another agency with no accountability. I remember years ago when they blew millions on a failed radio system and the project manager lied to the legislature, the $150 million plus debacle of the Newport highway where they hid the original engineer report that said they could not do what they wanted, or the Millions blown on the now abandoned LaPine highway interchange.