Performance audit OK’d for ethics commission
By JIM WALLS
Nov. 14, 2013 — State ethics officials Wednesday embraced a plan for an independent performance audit to help solve their structural and public-image troubles.
Voting 5-0 to seek the outside scrutiny, members of Georgia’s ethics commission expressed confidence that State Auditor Greg Griffin would thoroughly investigate charges that the agency’s top staffer interfered in a 2012 investigation of Gov. Nathan Deal. The vote ratified a request that commission chair Kevin Abernethy already made a month ago.
The panel had voted Sept. 30 to ask for appointment of a special assistant attorney general to look into the allegations. Abernethy said he learned that path would be “extremely expensive,” requiring a special appropriation from the Legislature, and he took it upon himself to approach the auditor instead.
Griffin “has the statutory authority and actually the responsibility to conduct an audit and investigation just like we are calling for,” Abernethy said.
The auditor has broad powers to investigate mismanagement and employee misconduct. He can issue subpoenas, take sworn testimony and compel production of documents. Uncooperative witnesses can be found in contempt of court. (See relevant code sections below.)
The attorney general could still play a role if the audit finds evidence of a crime. If there’s “even a hint or a whiff of criminal misconduct,” Abernethy said, “this board and I will ensure that appropriate prosecutorial action is taken.”
The commission took the vote after meeting for about 90 minutes behind closed doors, as reporters and other interested observers loitered in the hallway outside. One ethics staffer passed the time by helping Fox5’s Dale Russell program his smart phone; another reporter pondered the idea of filing a class-action lawsuit to keep the Atlanta Braves downtown.
Commission members said they hoped the audit would also spur reforms to strengthen and clarify their powers, duties and financial resources.
Abernethy even suggested it’s time to consider “eliminating some of the discretion” that legislators have in determining the agency’s funding. Lawmakers cut the commission’s budget by 42 percent between 2008 and 2012, crippling its ability to investigate complaints and audit campaign disclosures as they are filed. Some critics suggest legislative leaders have used budget cuts as a punitive tool to keep the commission on a short leash.
The commission Wednesday also reappointed Abernethy and Hillary Strongfellow to serve as chair and vice chair for 2014. Both, though, are serving terms on the commission that expire by next summer.
The Georgia Code gives the State Auditor the following investigative powers:
§ 50-6-28. Investigatory duties generally. It shall be the duty of the state auditor to make an investigation as a part of his audit of each and every department of the state government. When there are facts, records, circumstances, or information that indicate mismanagement or misconduct on the part of any official or employee of any department of the state government during either a past or present administration, it shall be the duty of the state auditor to make the full investigation, as provided in Code Section 50-6-29, of the department, official, or employee.
§ 50-6-29. Power to compel production of evidence. For the purpose of more completely discharging the duties resting upon him or her and to discover the truth and to make his or her reports truthful in all matters handled by him or her, the state auditor is empowered to conduct hearings, to summon witnesses, to administer oaths, to take the testimony of such witnesses, and to compel the production, inspection, and copying of documentary evidence, including without limitation evidence in electronic form and documentary evidence that is confidential or not available to the general public, at such time and place as he or she may designate for the purpose of investigating and determining the conduct and record of the employees and officials of any department of the state government. Notwithstanding any other provision of law, the state auditor shall have access to inspect, compel production of, and copy confidential information in any form unless the law making such information confidential expressly refers to this Code section and qualifies or supersedes it in that particular instance. When the audit or special examination of the state auditor is concluded, the Department of Audits and Accounts shall redact, destroy, or return to the custodial agency all confidential information except that information which the state auditor determines is necessary to retain for audit purposes or to disclose for other public purposes. For audit purposes, the state auditor may retain such confidential information in working papers as is minimally necessary to support findings and to comply with generally accepted governmental auditing standards. The state auditor may also disclose confidential information to other officers independently entitled to its receipt, such as for law enforcement purposes. Except as stated above in this Code section, confidential information in the hands of the state auditor shall have the same confidential status as it does in the hands of the custodial entity, and the state auditor shall protect its confidentiality with at least the care and procedures by which it is protected by the custodial agency or substantially equivalent care and procedures.
§ 50-6-30. Conducting hearings; assistance of Attorney General. A hearing as provided in Code Section 50-6-29 shall be held in the county where the department or institution being investigated is located and may be presided over by the state auditor. The state auditor shall, at any time when he or she deems necessary, request of the Governor, Lieutenant Governor, or Speaker of the House of Representatives legal assistance in conducting the investigation. Upon such request, the Governor shall designate the Attorney General, his or her assistants, or any special assistant attorney general for the purpose of assisting the state auditor in the prosecution of the investigation.
§ 50-6-31. Procedure for contempt of court where summons not obeyed. In the event any witness summoned to appear in person or to produce documents fails or refuses to respond to such summons, it shall be the duty of the state auditor to certify the fact of refusal to a judge of the superior court of the county wherein such witness was required and directed to appear for the purpose of giving testimony or producing documentary evidence, which judge shall issue immediately an order to the party commanding him to appear immediately before the state auditor for the purpose of giving testimony or producing documentary evidence as directed in the notice or summons given by the state auditor. In the event of failure to respond to the summons of the court, the party shall be guilty of contempt of that court and shall be dealt with by the court accordingly.