In one fashion or another, all state legislatures exercise oversight of state agencies and programs. They do this in a variety of ways using standing committees, rules review, auditing offices, sunset provisions, and more. On this episode of the podcast, we dive into the topic of oversight with three guests who all have different vantage points to observe the process.
In one fashion or another, all state legislatures exercise oversight of state agencies and programs. They do this in a variety of ways using standing committees, rules review, auditing offices, sunset provisions, and more.
On this episode of the podcast, we dive into the topic of oversight with three guests who all have different vantage points to observe the process. They include Kade Minchey, auditor general with the Utah Office of the Legislative Auditor General; Holly Trice, registrar of regulations in Virginia and on the staff of the Virginia Joint Commission on Administrative Rules; and Will Clark, who works with NCSL's Center for Legislative Strengthening.
Will Clark started our discussion with an explanation of some of the basics of oversight, the approaches used, and the tools available to legislators.
Kade Minchey explained how his office in Utah uses performance audits to help agencies improve and how the legislative committee responsible for audits uses the information.
Holly Trice talked about the rules review process in Virginia, how the legislature and executive branch work together, and how they afford all legislators and the public a chance to weigh in.
Resources
ES (00:12):
Hello and welcome to “Our American States,” a podcast from the National Conference of State Legislatures. I'm your host, Ed Smith.
KM (00:19):
We are the audit function for the legislature in the state of Utah. A lot of our audits definitely look at accountability and oversight functions, but we do that with the lens of trying to make organizations better and trying to improve government every day.
ES (00:35):
That was Kade Minchey, the auditor general with the Utah Office of the Legislative Auditor General. He's one of my guests on this podcast to discuss the issue of legislative oversight. Joining Minchey on the podcast are Holly Trice, registrar of regulations in Virginia and on the staff of the Virginia Joint Commission on Administrative Rules, and Will Clark, who works with NCSL's Center for Legislative Strengthening.
In one fashion or another, all state legislatures exercise oversight of state agencies and programs. They do this in a variety of ways using standing committees, rules review, auditing offices, sunset provisions, and more.
Will Clark started our discussion with an explanation of some of the basics of oversight, the approaches used, and the tools available to legislators.
Kade Minchey explained how his office in Utah uses performance audits to help agencies improve and how the legislative committee responsible for audits uses the information.
ES (01:38):
Holly Trice talked about the rules review process in Virginia, how the legislature and executive branch work together, and how they afford all legislators and the public a chance to weigh in.
Here's our discussion, starting with Will Clark.
Will, welcome to the podcast. Great to have you.
WC (01:57):
It's great to be here, Ed.
ES (01:59):
Will, let's start first with your role at NCSL. Tell us a little bit about how you are in a position to kind of understand legislative oversight and legislatures, what that kind of looks like from where you sit.
WC (02:13):
Great. Yeah. So, I am a program principal, and I am situated in the Center for Legislative Strengthening. So, our section is specifically focused on the legislative institution and looking at all the different components of how legislatures and legislators conduct their business. And one of my primary focus areas is legislative oversight, separation of powers. So really looking at the relationship between legislatures and executive branches, particularly, but also judicial branches.
ES (02:44):
That's a great introduction because we're going to talk with you and then we're going to talk with a couple people out in the states who are actually involved in the day-to-day effort of legislative oversight in all the different ways that it manifests itself in legislatures. But to start, let's talk just about the basics. What is legislative oversight and what are some of the components that make it up?
WC (03:08):
At its core, legislative oversight is a fundamental part of the checks and balances between the three branches of government that I just mentioned, particularly between the legislative and executive branches. So, while legislators have the power to make laws and the executive branch is responsible for implementing those laws, oversight activities generally are meant to help ensure that the intent of the legislature is being carried out by the executive branch and also that agencies are complying with their statutory requirements.
ES (03:40):
What do legislatures actually do to exercise this oversight capability? And knowing a little bit about legislatures over the years, I suspect that they don't do it exactly the same way in every state.
WC (03:53):
That's very true. Every single state conducts oversight in its own way, and that reflects the unique constitutional provisions, statutes, and other precedents in each state. But one of the main ways that they do this, which is common across all of them, is through the work of standing committees. So, think about all of the bills that are deliberated, the testimony received from experts and the public during committee hearings. All of that forms the backbone of legislative oversight. It serves as an opportunity for legislators to ask questions, and it's one of the first parts of the legislative process where the public gets to be directly engaged with new legislation. And there's a similar process conducted during interim committee work, which is when legislators can really focus on specific issues like transportation or juvenile justice. They can also hear from agency and program directors about their work, maybe interact with them a little more intimately, and then potentially propose legislation for the upcoming session, of course, depending on the information that they gather.
ES (04:58):
Later in the podcast, we're going to talk with someone in Utah about performance audits and someone in Virginia about administrative rules. And those are obviously a couple of ways. What are the tools that legislatures use in this oversight function?
WC (05:14):
Yeah, that's great. And as you mentioned, those are two of the key tools that legislatures now have available to them. But aside from that regular core legislative committee work, there are some other specific tools. For example, very common practice is for legislatures to require that agencies conduct certain reports or report on certain types of information to the legislature in a particular timeframe. It's very common. Other states have sunrise and sunset processes, and those look at the need to create or dismantle agencies and programs. And I think we've seen kind of generally over time sunrise processes have I think become a little bit more common, whereas sunset processes have kind of started to diminish, but they're still very strong in some states and very active.
ES (06:03):
Just explain real briefly here what a sunrise and sunset provisions are in legislation and in oversight.
WC (06:11):
Yeah, absolutely. So, sunrise provisions and statutes, they generally are looking for gaps. So, for example, a legislature might become aware of a practice that is not regulated currently. And so, they might look at how to regulate that process. It might be something new from a new profession. And so, if that's not being regulated by an existing board, they might establish a new board, they might establish a new agency if it's a large enough issue. Whereas sunset committees, they're generally set up to review agencies and programs on a regular timeline. So, some states have a very kind of clockwork timeline where a certain agency will be up for review every five years maybe. And so, the staff for that committee and the legislators will take a really deep dive into the functions of that agency, look at the purpose of the agency, and then make a determination whether or not to continue it.
WC (07:07):
So, there's some states that have a more limited provision for sunsetting, and so that might be a particular set or group of agencies that they're looking at. And then other states, it's a more comprehensive look at all agencies.
ES (07:23):
I kind of cut you off there a little bit earlier. And let me ask you, what other thoughts do you have about the tools that legislatures have in their toolbox to conduct oversight? Yeah.
WC (07:33):
I think kind of getting back to what you had mentioned earlier about program evaluation, that's now very common across legislatures. So, you've got performance audit offices, program evaluation offices, which are very similar, and these help legislatures ensure that the programs they establish and fund are operating efficiently, effectively, and economically. So, performance audits can look at a wide range of topics for everything from IT usage to education to omissions. There's really a wide range. And sometimes legislatures themselves will direct these audit topics. Sometimes auditors themselves will have some autonomy to pick topics that are pressing, but they all go through a fairly similar process. They all use common standards, and then they will typically write a report and then make that report publicly available. The last tool that legislatures have at their disposal, that's one of the primary tools, is administrative rules review. So ,these can be used to ensure that agency rulemaking falls within statutory authority and complies with legislative intent.
WC (08:42):
And as you mentioned earlier, use of these tools can vary quite a bit across legislatures. So, for example, with administrative rules, there's an entire spectrum of approaches across states. So, some state legislatures have great authority to pause or even revoke rules that violate legislative intent and others, legislators might need to enact legislation and then modify existing statutes if they can't come to some sort of agreement with an agency about a rule that they have concerns with.
ES (09:11):
So, I'm always kind of fascinated with how legislatures have evolved. And I want to ask you just kind of an historical question. Has oversight always been something, I mean, we go back to 1619, have legislatures always done this or is this a more 20th century, 21st century phenomenon?
WC (09:32):
I think this is more of a modern phenomenon. Previously, we've had offices across governments that are really looking at to make sure that money is being used appropriately. That's a very common historical function and continues to this day. It's very important to make sure that money is being spent as intended. But I think governments and legislatures specifically having some capacity to really look at how legislation is being implemented, that's something that has been a newer development. So, I think legislators and legislatures had a sort of disadvantage compared to the executive branch in the early part of the century, the mid part of the century, because they were just coming in for a few months, a year sometimes to conduct their business. Well, the executive branch was continuously operating. And so sunset and sunrise processes were sort of the first tool that legislatures enacted to gain some sort of control over the statutes that they passed and make sure that they were being implemented again to their intent as legislatures started to get more resources, started to get more professional staff capacity.
WC (10:42):
Then they were able to expand into research offices and then develop these program evaluation and performance audit shops. So, I think that really started to take off in the ’70s and then grow in the ’80s and ’90s. And now those organizations are very professionalized and have a lot of capacity and they do a lot of practice sharing. So that specifically is more of a modern phenomenon.
ES (11:05):
Yeah. I sometimes think that the incredible transformation of legislatures over the last ht0 or, so years is an underappreciated story in American governance. So, it sounds like this falls into that bucket as well. Will, as we close out here, what's the future look like for legislative oversight?
WC (11:24):
Yeah. For one, I think we are seeing some legislatures rely much more heavily on those program audit and program evaluation offices than they had previously. So again, even though they've been strengthened and very professionalized, I think legislatures and legislators are now becoming more aware of how valuable those tools can be and also how under their control they can start directing more evaluations of things that they really care about. Also, in some states that have never had one of these offices, they're looking to create one. So that's one major trend. Related to that, another area that we may see get increasing attention is the establishment of government efficiency committees, which are much more focused on agency operations and outcomes. And we saw a bit of activity around this last year, and we'll see how much states delve into creation of these types of oversight committees during the upcoming legislative sessions this year.
WC (12:18):
And then lastly, with all of the recent increases in technology, including AI, which I think is on the top of a lot of people's minds, and the continued movement toward digital environments, it's becoming more and more feasible to have active performance metrics. So not just a report that's reporting on things that happened one, two, three years ago, really looking at potentially having real time or close to real time information about various programs. So, participants in a program, for example, or even looking at cost overruns on specific projects.
ES (12:53):
Wow, that's fascinating. Well, we'll be back to talk with you again about that. I've already learned so much about legislative oversight in the course of doing this podcast that I'm sure there's a lot more to know, and I appreciate you taking the time to fill us in on it. Will take care.
WC (13:09):
Absolutely. Thanks for having me.
ES (13:11):
I'll be right back after this short break with Kade Minchey from Utah.
PROMO (13:21):
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ES (14:18):
Kade, welcome to the podcast. Great to be here. Thank you.
KM: Thanks for having me. To start, tell us a little bit about your office, the work you do, and what your staff do.
(14:31):
Yeah, thanks, Ed. So, we are the Office of the Legislative Auditor General here in the state of Utah. And our mission here is a mission that we really believe in strongly. It's to audit, lead, achieve. We help organizations improve. And the reason why I lead out with that is that really guides everything that we do here. OLAG is what we call our office for short. It's everything that we do here at OLAG. That last line, we help organizations improve. That's why we come into work every day. That's why we do our jobs is that we always are looking for ways that we can make government better. Now, we are an accountability office. We are the audit function for the legislature in the state of Utah. A lot of our audits definitely look at accountability and oversight functions, but we do that with the lens of trying to make organizations better and trying to improve government every day.
KM (15:26):
Let me just give you a couple examples as to how we do that. Through the audit system itself, we do that through recommendations that we make, and we can talk maybe a little bit more in detail on that later. But when I say we audit, lead, achieve, the leading part is something that we also take very seriously here. And we've done that in different ways, but one of the ways that we're doing that is through publishing these best practice handbooks. And what these handbooks do is they create some standards for government as to what efficiency and effectiveness looks like. That's what a performance audit is. It's about efficiency and it's about effectiveness. And these best practice handbooks essentially give the answers to the test ahead of time. And we've had a really good result here. Really good result with state agencies saying, "We want to be good.
KM (16:13):
Tell us how." And then we go in there, what we see is they're already working on a lot of these issues ahead of time and then we're able to help them go even further.
ES (16:22):
So, some people, and that would include me, might not know too much about the difference between a performance audit and an accounting audit. Can you just walk us through that?
KM (16:33):
Yeah, happy to. And I'm glad you asked that question. When I tell people what I do, they ask me, "Hey, Kage, what do you do for work?" And I tell them that I'm an auditor or I tell them the auditor general. They're like, "Okay, well, where did you go to accounting school?" And I was like, "Okay, this actually opens up a conversation to talk to more about that because we're actually not accountants here in our office." We have people with a lot of financial background. We have people with economics background, public policy background, but we're not financial statement auditors. Financial statement accounting and auditing is an extremely valuable function. And there's a lot of auditors that do that and they do a fantastic job. In the state of Utah, we have two state level auditing organizations, and there's a number of states that are set up this way and some are set up in different ways, but we have the state auditor here in Utah that is an elected official that primarily does financial statement auditing, which a lot of people are aware of.
KM (17:30):
Again, making sure that all of the accounts, funds are tied and can be accounted for and ensure that those financial statements are accurate, very important function. The legislative auditor general's office here, when we say performance, again, it's those words, efficiency and effectiveness I think are the key words here. Let me just give you maybe an example or two as to what a performance audit can look like. We go all across the state and look at various functions. We look at functions in natural resources, looking at water issues. Do we have proper data to know how much water is being used? This water is a very important natural resource in any state, particularly in Utah. It's an extremely important resource. And so, we're looking at water accountability. We look at systems in public education and higher education. We have done several audits in higher education as it looks at governance of the system.
KM (18:28):
We have eight degree-granting institutions in Utah and a lot of the work we've done there is how they coordinate with each other and how the system governance is done and making sure that they're following best practices. So, a performance audit will look at compliance with law and policy but also look at best practice. So, it's not just, are you complying with the law? That's important for sure. And that's that accountability. But we go beyond that to say, "But what's the most effective way that you can perform?" And we do that by getting best practices across the country. We work with our colleagues in other states all over the country, talking to them, building relationships with them. "What do you do here? What do you do there? "We get ideas and we bring it into these audits, and we help these organizations move forward.
ES (19:14):
We had an earlier conversation where you talked about an audit your office conducted related to the Department of Corrections. I thought it was a great example of the work you do. Can you tell listeners a little bit about that?
KM (19:27):
Yeah, thanks, Ed. You and I talked about this a little bit before. It's a really good example as to what a performance audit can do. So, there was a need in Utah to build a new prison system. Our old prison facility that was in the south part of Salt Lake County was old. It needed major upgrades and renovations, and it was also in a place that was being really built up with communities and stuff. So, it wasn't an ideal location anymore. So, the legislation governor decided to move that prison west of our airport here in Salt Lake City. When they did that, they spent quite a bit of money. It was almost a billion-dollar project. So, this is a significant public project, and they built it and designed it with a new system in place on how officers and inmates can interact with each other.
KM (20:22):
It's called a direct supervision model. Of course, what we're trying to do is at the Department of Corrections, it's a correct behavior and tried to rehabilitate. And so there had been a lot of studies and research showing that if officers could directly work with the inmates in a more collaborative way, there was better results. And so, this new prison was designed in that model. There's a lot in that space. I'll just kind of leave it a high level there. One thing though that was, in our opinion, in our audit, what we talked about was overlooked, was that this took more staffing to do that. The old model where you stay in a control room and kind of look out and look at all of the different pods and maybe send an officer in occasionally required less staff. Well, the problem here was that the Department of Corrections had been understaffed for about a decade as it was.
KM (21:14):
So even if they were fully staffed, moving that same staffing level over to the new prison wasn't going to be adequate, but they're already down, I can't remember the numbers exactly, but I want to say somewhere between 10 and 20% staffing levels already. So, moving an already shortage of staff to this new model, what happened was very serious and quite concerning results in that officer safety was being jeopardized. And I say that solemnly because we saw some of the videos and there were some real hardships there for officers being attacked by inmates because the model had officers directly in these pods, but you need to have enough of them to ensure safety. Well, as you can imagine, Ed, this quickly became a concern that the legislature started hearing about, and there was a lot of information coming to them. They were having a hard time really trying to ascertain, "Well, who do we trust here?
KM (22:14):
What's the right information?" We know there's a problem, but how are we going to fix this and who's going to give us the most reliable information? That's when they come to us. We are the staff office to go in there and sort this out. So, we sent a team into the prison, spent a lot of time. We were in the pods. We were walking around with the officers. We were on the ground. We spent months actually in the prison looking around, interviewing everybody and really getting to the bottom of it. There were several things going on, but this critical staffing issue became very apparent that they had never planned appropriately for this new model. There was never really any strategic thinking here, and it created a crisis. We made a whole series of recommendations dealing with how are you going to increase staff. There was a cultural problem.
KM (23:04):
As you can imagine, officers get attacked. Well, you don't want to come to work. They're certainly, they're leaving. It's harder to recruit. It was a crisis really in every form of the word. New leadership came in. We gave them a whole blueprint on how to change this. They came in, followed that blueprint and added, of course, some of their own ideas and thoughts to it and really changed that around. The cool thing is, I just looked at the staffing list just a couple weeks ago and not only are we not fully ... We're fully staffed right now, but there's a waiting list actually to work in that prison, which is really exciting. Now I'm not taking credit for all of that, but it is a real function that we played in order to help the legislature understand where those issues were and how to move forward with them.
ES (23:50):
Another issue you mentioned earlier was the importance of leadership, that being one of the issues you looked at closely in your audits. Can you talk about that.
KM (23:58):
This is something that we've spent a lot of time thinking about and I've actually had some opportunities to go around to various different states and do some training on this and also get some really good feedback as we've done that from these other states. When we look at how to correct problems, I gave you this story, this example with the prison system, and as we looked at what we need to do and what we need to understand and how to best correct this problem is we need to know what the root cause is. It's easy for an auditor to go in and say, "Okay, you have a staffing shortage. The recommendation is hire more people. " Okay. Yeah, we don't need you to come in here and tell us that case. We can figure that out on our own. So, when we're talking about our recommendations and we're talking about helping organizations improve, what we are looking at is what the root cause is.
KM (24:58):
And that root cause could be multiple things, but what we have identified, and we just produced a report on this that we just released last week on causal analysis and how to go through and identify what root cause is. We've came up with five different causes that we have found in pretty much every single situation, issues, problems, causes of our findings fit into one of these five areas. The first one is governance, then leadership, culture, structure, and process. We went back for multiple years and analyzed all of our audit findings, all of our recommendations, and we found that in almost in every case, one of those five things is what is broken. And so, when we look at the prison system, we're looking at it through that lens. "What's the governance here? What's the overall leadership from the highest levels? The governor, the executive director, the legislature. Is there enough funding?
KM (26:00):
Is there enough coordination? Are the laws or are the policies, right? All of that governance model. And then as you point out, we look at leadership and leadership was a really key issue here in the prison system. A new leader came in, his name was Brian Red, and he became the director of the Department of Corrections around this time, and his leadership was a key reason why this change occurred, but we identified that lack of leadership, and the governor's office, seeing that recommendation, said," Yes, we agree we need to make a leadership change there. "It's not enough just to talk about policies and procedures when you're talking about these changes. You have to talk about what really the problem is. And then I already kind of talked about culture a little bit, but leadership, a new leadership was able to impact a culture change there, which made a much more positive organization to work in.
ES (26:52):
Kade, what's the scope of the oversight that you have over state government operations?
KM (26:59):
So, we have very broad authority. We have a constitutional provision in our state constitution that allows us to audit any fund or function of government and to get any record document. There's also statutory provisions. I clarify that a little bit, but we can get any information we need to conduct these audits. That is critically important. You can't do an audit and have one arm tied behind your back. If you can't get all the information, I can't give the legislature a true and honest assessment of what's going on. We have to be able to see everything. People sometimes get worried about that. Well, geez, you auditors want to see everything. It's like, well, we simply can't do our job without seeing everything, but the scope of authority is broad for that reason. And just maybe a little point on that is when we do our audits, we do quite often very broad look at things across whole systems.
KM (27:56):
There's not a lot of people in the state. In fact, I can't really think of anyone else that has this level of broad authority and system-wide look that we can do. Let me give you an example of that. Mental health is an important issue, I think across the country. Certainly, it's an important issue here in the state of Utah. We're seeing increased need to ensure that we have the right services and providers in place there to help people that are dealing with this really important issue. Beyond that, we even broaden that a little bit to behavioral health dealing with not just mental health issues, but also substance abuse and other issues in this space. We were asked by the legislature to look at, and the request was, and the scope was help us know how we can improve our behavioral health system in the state of Utah.
KM (28:50):
Where do we go? What do we do? And so, we have done a number of audits on this. We're actually working on one right now. What we did is we broke it into several key areas. The first one was governance. I told you about our governance and leadership and culture. So, the first thing we looked at was governance. Do we have a governance model in place that can see and have the broad picture of what's going on across the state? The answer to that was no, we don't. We have a Department of Health and Human Services that had a big piece of that, but we also have funding for mental health services and public education. We have it, of course, in our criminal justice system. There's funding for that. We have it in some local areas. County government has pieces of that. There's all these pieces.
KM (29:35):
Our higher education system has parts of this. There's all these pieces and there isn't one entity that's able to bring all that together. We're able to through our authority to audit, but going forward, someone needs to govern and manage all this. Even the amount of money that's spent across the state wasn't known. There's another audit we did is we just want to know, the policymakers want to know how much money are we spending and where Where's it going? We spent months going through and found over a billion dollars and we're not even sure we even caught all of it. And so, these system-wide audits are very important to bring pieces all across the state together and package it in a way that makes it clear for the legislature to understand, okay, here's all the issues on this particular topic. In this case, I'm talking about behavioral health.
KM (30:26):
Here's the key areas that need to be worked on. And then we break it out with actual recommendations and so they can start moving down the list and start improving the system.
ES (30:38):
Obviously, you can't audit every agency or program every year. Tell us about the process you're using in Utah to decide where to focus your efforts. How does that process work?
KM (30:49):
Yeah, thanks. I'm glad to talk about this because we think it's a process that really gets us into the right issues. And you're right. The legislature has given us a lot of resources. We have a lot of staff, but we can't be everywhere. I mean, we have to prioritize the most important issues. And that's critical, I believe, for every audit function to be able to really get to where the key issues are. The way that we do that here in the state of Utah is that we have a legislative audit subcommittee is what we call it. That's who I answer to as the auditor general. That committee is comprised of the highest levels of leadership for the legislature. That's very, very important because it's actually an audit standard that auditors report to the highest level of an organization. The reason why that's an audit standard is because those are the individuals that have the influence to, first of all, be able to make the changes that we're going to bring to them, but also, they have the vision to see where the problems are.
KM (31:55):
And so, in our case, that would be, of course, the president of the Senate and the Speaker of the House. As the presiding officers, they are the chairs of our committee. And then we have the majority leaders, and the minority leaders make up that committee. So, it's a six-member committee. Any legislator can write a letter and request that an audit be conducted. As we've talked about, those requests for audits are large and we can't get to all of them all the time. I wish we could. We try our best to be very efficient and we could talk about that process maybe on another conversation, but this committee helps us sort through that list and pick out those audits that will have the greatest impact. They also, the audit committee members also can themselves bring forth issues that they see as being critical. So, in the case of this audit that we talked about with the prison or with the case with behavioral health, what happened was just as we described, there was constituents seeing the problems, talking to their legislators.
KM (33:01):
Those legislators then are talking with the audit subcommittee and making a request to say, "Hey, we got to get in there and get this figured out. " In the case of that one with the prison system, if I recall correctly, it was, I believe, the chairs of our criminal justice appropriations committee that was seeing those issues and saying, "Hey, we need to audit this and look into that more." So that's the process getting to the most relevant issues and doing them in a timely way, we can make a lot of impact.
ES (33:34):
I know that the recommendations from the audits go back to the committees of jurisdiction for those policies. My broader question is, to what degree can legislators and legislative staff can and do use your audit findings to help them when they're crafting new legislation?
KM (33:52):
Oh, wow. Great question. And that just triggered a bunch of thoughts here as to what makes our office function as well as it does. And the first thing I wanted to say is, you talked about other staff. Our other staff offices in Utah work extremely closely with each other. I'm sure a lot of states are structured the same way, but we have an office of legislative research and general council that analyze policy. The drafting attorneys are in that office, drafting bills. We are all in the same building here in the capital complex. We see each other all day long. We have great relationships with each other. We also have our office of legislative fiscal analysts that oversee and staff all the appropriation committees here. So many of these audits deal with appropriation issues, making sure that we have those appropriations right either. Sometimes they need more resource sources.
KM (34:50):
Sometimes we feel like they need less resources. Those offices together, we have such a close and collaborative relationship with them. They really help making sure that our audits are being visible and recognized and bringing those to the appropriate committees. Now, that's on the staffing side. On the elected leadership and legislative side, there's great collaboration there as well that our audit committee made up of the leadership that I told you about. After an audit is presented to them, they give us all ... So, it starts and stops with them. They give us our assignments. Then we work independently underneath my authority and the constitution and in statute. Legislators aren't involved in that process obviously for independence and objectivity. And then when we're done with the audit, I finish it up, certify it, and then send it to the audit subcommittee to be publicly released. That committee hears the audit, releases it publicly.
KM (35:50):
And then what they do is they refer to other committees, whether that be appropriation committees or interim committees to study the issue further. And then they write a letter and say, "We would like you to study this audit and ensure that each of these recommendations are implemented." The legislature also put into place a law a few years ago, Representative Jeff Burton here in the state of Utah ran some legislation to ensure that audit recommendations were implemented. The way that's done is when we release an audit, a chief officer of the organization that we audit is selected by us. It's usually like the executive director of an agency or if it's a university, be the president of the university or chair of the board, and they are required every six months to report back to us and to the assigned legislative committee on their progress towards implementing these audits.
KM (36:45):
And so, there's a whole coordinated system through relationships we have with other staff offices, with the legislative committees, and with the organizations we audit themselves in ensuring that these recommendations are making the right changes and ensuring that organizations are improving. An example of that is with some election audits that we did. We have done several election integrity audits across the state and found a number of issues that we saw that can be improved. We've done several of these audits and in every single case, every recommendation we gave, a lot of them were to the legislature. The legislature took everyone of those recommendations and put them into a bill and passed it through and they became law. And so, it's been a really, really successful ... So that's one example of, I could talk about every single year, dozens and dozens of these audits. And then we track that for the legislature.
KM (37:39):
After the session, we track all the audits and all the legislation that are tied to them and we give it back to them and say, "Hey, this is all the work that was done." They're really encouraged by that to see, because our committee's like, "Look, we want to make sure these audits are being followed up on. " So, then we report back and show them everything that was completed and all the bills that helped make government better.
ES (38:03):
Well, I think the inclusion of all the top leaders on this committee shows how seriously the Utah legislature takes this effort. Cade, thanks so much for giving us your perspective. I think this is a topic that's probably a little underappreciated. Take care.
KM (38:18):
Thanks, Ed. Appreciate it.
ES (38:20):
I'll be rig5 back with Holly Trice from Virginia.
PROMO (38:30):
When it comes to podcasts, only one organization NCSL keeps a focus on the people, policy, and politics of state legislatures. Each episode of our podcast offers behind the scenes insights into the legislative process. First, the program Our American States provides in- depth discussions twice a month on key state policy issues shaping our nation or explore bipartisan dialogue with our special series Across the Aisle, where diverse political perspectives converge to create constructive conversations in state legislative chambers. And for history buffs, we've also produced a six-part series called Building Democracy: The Story of State Legislatures. Listen to learn more about the creation and development of the first branch of government in the United States. Stay connected, stay informed. Subscribe to these programs now on your favorite podcast platform. Learn more at ncsl.org.
ES (39:49):
Holly, welcome to the podcast.
HT (39:51):
Hi. Thank you, Ed. I'm glad to be here.
ES (39:54):
So, we're doing this podcast to talk about legislative oversight and talking to some people around the country for kind of different views of how that works in different legislatures. And I wonder if you could start, give us a little primer on your legislature's administrative rules review process.
HT (40:10):
Sure. So ,in Virginia, the General Assembly gives agencies pretty broad authority to promulgate regulations, but that authority is bound by a process set out in statute, known as the Virginia Administrative Process Act or the APA, and that's found in Title 2.2 of the Code of Virginia. For most cases, before a regulation can take effect and be enforced, an agency has to move through a three-step regulatory process. And the first step is a notice of intended regulatory action or NORA, and that's followed by the proposed regulation stage and finally the final regulation stage. For each of those stages, however, both the public and the legislature have opportunities to review, comment on, in some cases object to a regulatory action. And specifically, from the legislative perspective, there's two primary actors. One is the Joint Commission on Administrative Rules known as JCAR, and the other is the relevant standing committee of each chamber that has subject matter jurisdiction over that regulation.
HT (41:21):
As far as JCAR, that's a commission made up of members of both the House and the Senate. JCAR itself was created in 2002. It's housed in the legislative branch. JCAR is charged with reviewing existing agency rules, regulations, practices, as well as regulations that are in the process of being promulgated. And the focus of that review is on whether an agency is acting within the authority delegated to it by the general assembly and whether it's complying with the requirements of the APA. There's also the registrar's office, which is a legislative branch agency created by the General Assembly that was created to ensure that the state's regulatory process runs smoothly and consistently. The registrar, which is me, doesn't make policy. I don't decide whether a regulation should exist. That's the agency's job, but the registrar's office plays an oversight and coordination role for all regulations promulgated in Virginia.
ES (42:25):
One thing I'm always curious about is, of course, the legislature and executive branch often get along just fine, but sometimes they have disagreements. And I wonder how the legislature handles that. Is there a process or is there an approach to sort of settle those disagreements?
HT (42:43):
Yes. And that is set out in a section of the APA. It's designed to encourage coordination between the legislative and executive branches. Under that section, the legislature primarily, again, through JCAR or the relevant standing committee can formally object to a regulation if it believes that agency has exceeded its statutory authority or failed to comply with the APA. However, that being said, neither JCAR nor the standing committees can act unilaterally. Any action that would actually affect the regulation, such as suspending, delaying, preventing it from taking effect, all of those things would require the concurrence of the governor. So that requirement preserves the executive branch's role in the regulatory process and reinforces the separation of powers. JCAR, and again, the appropriate standing committee of the General Assembly, they can review a regulation and formally object if they believe that the regulation exceeds the agency's statutory authority. And then once that objection is made, the agency itself is required to provide a written response addressing the legislature's concerns within 21 days of the agency's receipt of the objection.
HT (44:01):
Subsection A of 2.2414 requires that the registrar's office publish both the objection and the agency's response to that objection. And then subsection B addresses what happens if the concerns remain unresolved, meaning the agency does not amend the regulation to address the concern or it doesn't withdraw the regulation completely. And it provides that the legislature has the ability to essentially hit a pause button, but only again with the governor's concurrence. And if the governor does concur, then JCAR or the standing committee can suspend the effective date of all or part of a regulation until the end of the next regular legislative session. And if the legislature then nullifies or modifies the regulation, the agency would then have to repromulgate it with only the legally required changes or they could do the full three-step regulatory process. But if no legislation is passed at all, they don't look at it, they don't object, then the regulation automatically becomes effective at the end of the session unless the agency withdraws it.
ES (45:10):
Well, it sounds like there's certainly a process there that allows people to see everything that's going on, but practically speaking, how do legislators and the public engage in this regulatory process make their views known?
HT (45:25):
Well, like I mentioned earlier, both the legislators and members of the public have multiple opportunities to engage throughout the regulatory process. During the NORA and the proposed regulation stage, there are public comment periods where anyone can submit feedback. Agencies can also hold public hearings and legislators and staff can participate by submitting their comments and asking agencies questions during those public hearings. And then even at the final regulation stage, there are still mechanisms for review. In some cases, like I talked about, objection is a possibility. So, engagement isn't limited to just one moment. It's really built into the entire life cycle of the regulation.
ES (46:10):
Let me ask you as we close up here, what else you might like legislators and others listening to the podcast to know about this process? And I think we talked a little bit about, just reflect a little bit on why it's important to have this sort of process, the value of this kind of review, both the public access, but also just the legislature and the executive branch working together on this. Talk about that just a little bit.
HT (46:36):
I do want to point out that JCAR is really an oversight, an advisory body. It's not a regulatory one, much like the registrar's office of which I'm a part, it does not promulgate regulations. It does not substitute its judgment for that of the agency on their policy choices. It's really that JCAR's authority lies in identifying legal or procedural concerns and making recommendations to the agency, the governor, and the general assembly. Essentially, JCAR provides a centralized forum, if you will, within the legislature to monitor how delegated authority is being exercised while still respecting the executive branch's role in administrating and enforcing the law. And I think that when JCAR flags an issue, it often serves as an early warning sign, prompting agencies to revisit regulatory language or clarify their authority before a problem escalates.
ES (47:36):
That's a great clarification, I think, and an explanation of how legislatures in different states can set up systems to make sure that what they passed ends up being what they want to see enacted and administered by agencies. So, Holly, thanks so much for taking the time to do this and take care.
HT (47:55):
Oh, thank you. And thank you so much for having me.
ES (48:02):
I've been talking with Holly Trice from Virginia, Kate Minchey from Utah, and Will Clark from NCSL about legislative oversight. Thanks for listening. Search for NCSL podcasts wherever you get your podcasts. This podcast, Our American States, dives into some of the most challenging public policy issues facing legislatures, our occasional series across the aisle, features stories of bipartisanship. Also, check out our special series, Building Democracy on the History of Legislatures.