After weeks of silence from the House of Representatives on Auditor Diana DiZoglio's announcement that she plans to audit the Legislature, the counsel for the House responded on Friday, saying the state constitution "explicitly and repeatedly prohibits" the action.
"That your office has the legal authority to conduct an audit of the General Court is a claim entirely without legal support or precedent, as it runs contrary to multiple, explicit provisions of the Massachusetts Constitution, and is wholly unnecessary as the public currently has full and ready access to the House's financial information," House Speaker Ron Mariano wrote in a letter addressed to DiZoglio.
Mariano wrote that he "respectfully denied" DiZoglio's attempt to audit the body, and said the suggestion that she has the authority to do so "violates basic separation of powers principles that the Supreme Judicial Court has called 'fundamental ... to our form of government.' "
In a statement responding to Mariano's letter, DiZoglio said Friday that she is "not asking for permission."
"I find it disappointing the Speaker is fighting an audit of what is happening in the people's house, where the people's business is conducted, using the people's money. We are not asking for permission and will continue conducting our audit as planned to help increase transparency, accountability and equity for everyday families," she said.
The development raises questions about how DiZoglio will audit parties that believe she is out of bounds, and whether a court judgement may be sought.
The state auditor's governing statute says the office must audit the "accounts, programs, activities and functions" of "all departments, offices, commissions, institutions and activities of the commonwealth, including those of districts and authorities created by the general court."
The same section also gives the state Superior Court "jurisdiction to enforce the production of records that the department requires to be produced pursuant to this section, and the court shall order the production of all such records within the scope of any such audit."
House of Representatives' counsel James Kennedy disputes that the auditor's governing statute gives DiZoglio's office authority to audit the Legislature, saying it "omits any reference to the General Court, and Section 12 as a whole, reveals that an audit of the General Court could not have been contemplated."
He adds that the section of the statute that says the office is able to audit "departments" "encompasses only agencies and offices within the executive branch and not the other separate branches of government."
Kennedy brings up several other points in his letter, including that the House has the "exclusive" and "absolute" authority to "settle the rules and orders of proceeding" in the chamber; and that the Supreme Judicial Court previously ruled "that such 'procedural statutes are not binding upon the Houses' and that each 'branch, under its exclusive rule-making constitutional prerogatives, is free to disregard or supersede such statutes by unicameral action.'"
Kennedy also references comments made by DiZoglio's predecessor, Suzanne Bump, who he writes said, "the Legislature is not an agency or department but rather another branch of government and, thus, subject to protections under the separation of powers doctrine."
When DiZoglio raised the idea of auditing the Legislature on the campaign trail, former Auditor Bump told CommonWealth Magazine that the auditor lacks authority to do so, prompting DiZoglio to respond that the Legislature should not be exempt from accountability.
When the auditor, who previously served in both the House and Senate and was well-known for her clashes with leadership over transparency issues, announced the audit earlier this month, she said she hopes the move will "increase transparency, accountability and equity in an area of state government that has been completely ignored." She added, "Historically, the Legislature has been a closed-door operation, where committee votes have been hidden from the general public, and legislation has been voted on in the dark of night."
During a taping of WCVB's On The Record, which will air on Sunday, Mariano said he believes DiZoglio is overreaching, WCVB reports.
"We operate independently and we're judged on what we do. I don't need someone with a political agenda, who's in the Executive Branch, passing judgment on me," Mariano told OTR.
The Legislature is exempt from public records law and has come under criticism for keeping committee vote tallies private. Most joint committees do not publicly share a breakdown of how every lawmaker votes in the polls that advance or kill legislation, and the House and Senate do not take recorded votes even on most of the bills that make their calendars.
DiZoglio included in her engagement letters to the House and Senate that her office would be reviewing "budgetary, hiring, spending and procurement information, as well as information regarding acting and pending legislation, the process for appointing committees, the adoption and suspension of House and Senate rules and the policies and procedures of the House and Senate."
Both chambers hold a public debate on their operating rules each session; the process of appointing committees is done behind closed doors.
Mariano wrote in his letter to DiZoglio on Friday that the House's financial accounts are publicly available online, and that "any performance assessment of the House of Representatives relative to its budgeting, hiring, spending and procurement, active and pending legislation, committee appointments, legislative rules, and its policies and procedures are the sole constitutional purview of the Members elected to the House of Representatives."
DiZoglio told GBH recently that she is hoping to not have to involve the courts, but that she is willing to do so "if necessary."
"I hope that the courts do not have to be involved in this conversation," she said. "They shouldn't have to be involved in this conversation. That is a path that I said I would take if necessary, but ... I'm hoping that legislative leadership will come around."
Previous audits
DiZoglio has also made headlines by saying the Legislature hasn't been audited since 1922, which both the House and Senate have now contested.
"Unfortunately, the Legislature has not been audited since 1922, while Massachusetts ranks as one of the least transparent and least accessible state governments in the nation," DiZoglio wrote to lawmakers on March 7.
Though the House did not respond to her announcement until Friday, Senate President Karen Spilka issued a statement on March 7 saying the Senate undergoes an audit every year.
"Under the Massachusetts Constitution and as the separation of powers clause dictates, the Senate is required to manage its own business and set its own rules. Those rules require that the Senate undergoes an audit every fiscal year by a certified public accounting firm experienced in auditing governmental entities and provide that audit to the public. Further, Senate business is made public through journals, calendars and recordings of each session, while payroll and other financial information is publicly available on the Comptroller's website. If anyone wishes to view this information, it is available to the public," a Spilka spokesperson said.
Now, the House has echoed the Senate's statements, saying it undergoes an audit from an independent firm every fiscal year.
"I want to first dispel the notion that the most recent audit of the House of Representatives was in 1922, as the Auditor has been publicly stating," Kennedy wrote. "I presume that the 1922 document that the Auditor has been referencing is the Report of the Auditor for the Fiscal Year ending November 30, 1922, filed January 10, 1923. This report was not, nor does it reflect, an audit of the House of Representatives. In fact, we have no records of the Office of the State Auditor ever auditing the House of Representatives. A close inspection of the 1922 document itself, and of the historical context in which it was produced, makes it clear that this report is merely an accounting of the Commonwealth's revenue, expenses and debt, including those expenses of the Legislature and other branches and departments of the Commonwealth, including the Auditor's office itself. Clearly, such summaries of the Commonwealth's financial transactions do not amount to a performance audit in today's meaning."
The most recent audit publicly available for each chamber and the Legislature's joint accounts is for fiscal year 2020.
The Senate audit for fiscal year 2021 is currently with the auditor's office and "work is underway," according to a spokesperson for the Senate President. The chamber received the fiscal year 2020 audit in August 2022 and anticipates receiving a completed audit for fiscal 2021 "between now and August 2023."
The four most recent publicly available audits of the House, Senate and joint accounts for fiscal 2017 through fiscal 2020 were all conducted by accounting and wealth management firm CliftonLarsonAllen LLP.
The most recent Senate audit is nine pages and the House audit is eight pages.
Run through Copyleaks, an online tool that checks how much overlap there is between two documents, the most recent House and Senate audits were found to be 85.7 percent identical.
Both the House and Senate documents for fiscal 2020 include, among other details, a short summary of the CLA's responsibility as the auditor, an overview of how the legislative process works in Massachusetts, and financial statements on their budgetary accounts.
The financial statements include: funds appropriated in the fiscal year budget, balance forward from the previous fiscal year, total available funds (the current year plus previous year's holdovers), expenditures, and balance forward to the next fiscal year.
Neither audit includes a line item breakdown of spending.
CLA found that the audited fiscal 2020 financial statement of both chambers "presents fairly, in all material and respects, available resources and expenditures."
Both the House and Senate audits also reference an internal control report, also conducted by CliftonLarsonAllen. When asked, the Senate President's office would not provide this document.
Speaker Mariano's office did send their version of the internal controls report for fiscal year 2020.
In it, CLA writes that they considered the House's internal control over financial reporting "as a basis for designing audit procedures" but "not for the purpose of expressing an opinion on the effectiveness of the House's internal control."
Therefore, it says, they do not give an opinion on the House's internal control. CLA also gives no opinion on the House's compliance with "certain provisions of laws, regulations, contracts, and grant agreements."
"Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weaknesses. However, material weaknesses may exist that have not been identified."
Asked about the Legislature's previous audits, DiZoglio responded in a statement that "if there was nothing to hide, legislative leaders should welcome meetings with our office regarding our performance audit -- like every other state entity has done."
"Legislative leaders should demonstrate respect to everyday working people seeking information by cooperating with our office's review," she said.
