Fate of performance audits now rests on Governor's veto pen

By JASON MERCIER  | 
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Mar 30, 2016

Now that lawmakers have adopted the 2016 supplemental budget and taken 74% of the voter-approved dedicated performance audit funding away from the State Auditor's Office, all eyes turn to the Governor and his veto pen. When the budget details were first posted yesterday it looked like the calls to not raid the performance audit funds had been heard. All three budgets (Governor, House & Senate) had originally proposed a $10 million transfer of the performance audit funds.

That transfer does not occur in the final budget. Instead, however, lawmakers reduce funding for the Department of Revenue (DOR) by $10 million (GFS) and then backfill that money with a $10 million appropriation from the dedicated performance audit account. The effect of this is devastating on the voter-approved performance audit program as described today by Deputy State Auditor Jan Jutte:    

Yesterday, I met with our Office’s Performance Audit Team – people who work every day to find ways to improve public services – and explained that some will lose their jobs as a result of the budget just approved by the Legislature. That budget will divert $22.6 million the voters had dedicated to the performance audit program to other agencies, a full 74 percent of our revenue. These are not, as some suggested, merely excess funds, which can be taken without harming our work. A cut of this magnitude mandates layoffs, eliminating audits and canceling contracts with performance experts.

Jutte continues to say: 

The Legislature places little value on our efforts to hold government accountable for its use of public resources, and that is disheartening. But I still believe in the importance of our mission to the public. We do great work for the people of Washington, and we will continue to do so with our remaining resources.

As Governor Gregoire did in 2009 vetoing a $29 million raid of the performance audit funds, it is now up to Governor Inslee to save the performance audit program by vetoing the $10 million appropriation to DOR.  Judging from the state's case law on appropriation vetoes, the Governor should have the authority to issue the veto: 

The Supreme Court must not abdicate its constitutional  duty to act as an impartial referee of constitutional disputes between the legislative and executive branches of government in cases involving the gubernatorial veto. We should be steadfast in exerting a limited, and cautiously exercised, judicial responsibility with respect to the veto power to make sure neither the Legislature nor the Governor takes unfair advantage, and the balance our constitution envisions endures.

Lost in the discussion of the Governor's line item veto by the parties in this case is the fact the Legislature has a ready constitutional remedy if it is aggrieved by the Governor's action. The Legislature has the final say on the Governor's veto.  Indeed, after the passage of the 62nd Amendment, the Legislature can even call itself into session to consider gubernatorial vetoes.  Though the Legislature has reluctantly exercised this power to override a veto in the past, we should be loathe to limit the Governor's line item veto power when this constitutional remedy is available to the Legislature.

As we saw this week with the legislature's historic override of 27 vetoes, should lawmakers be so intent on following through with the attack on the performance audit program they have a remedy in hand to respond to a veto by the Governor. 

UPDATED (3/31)
Here is the veto request letter the State Auditor's Office sent Governor Inslee yesterday

Additional Information
Gregoire's 2009 performance audit fund raid veto:

Section 805, page 206, lines 33-35, Transfer from the Performance Audits of Government Account to the State General Fund Although the Performance Audits of Government Account has accumulated a surplus fund balance during initiation of the State Auditor's program, a transfer of $29.24 million would significantly detract from the state's ability to conduct performance audits in the future. However, because all of state government must make reductions in these tough economic times, the Auditor has committed to a $15 million transfer that can be accomplished in the next legislative session. For these reasons, I have vetoed Section 805, lines 33-35.