Mass. auditor moves to sue the Legislature into complying with her review

Auditor Diana DiZoglio is pulling Attorney General Andrea Campbell into her escalating effort to audit the Democrat-controlled Legislature where DiZoglio used to serve.

On Wednesday, DiZoglio launched an attempt to initiate legal action against the Legislature, calling the resistance by House Speaker Ron Mariano and Senate President Karen Spilka to an audit by her office "a direct affront to the Constitution."

The Methuen Democrat, who served in the House and Senate before winning statewide office in November, sent a 27-page memo to Campbell seeking her support in a move toward litigation against the elected bodies well known for a lack of transparency.

"We have two legislators who were elected by a very small fraction of the state twisting and weaponizing both Massachusetts General Law and the Constitution against the people of the entire state of Massachusetts to try and shield themselves from basic public accountability that is supported by law, the Constitution and undeniable historical precedent," DiZoglio told reporters in her State House office.

Legislative leaders have denied DiZoglio's attempts to audit the House and Senate, arguing the state auditor does not possess that authority and that such an action would violate the principle of "separation of powers."

DiZoglio said the Legislature is the only state entity that has rejected her audit attempts.

"You would think that this was an FBI investigation," she said.

Her intensification of the fight had been expected, but the way forward is uncertain.

Under state law, the auditor's office cannot initiate a lawsuit on its own and must instead ask the attorney general for authorization to head to court, regardless of whether the other party is a public or private entity. DiZoglio's memo filed Wednesday is an official first step toward that goal.

The maneuver pulls Campbell into the battle between DiZoglio and legislative leaders, with whom she repeatedly clashed during her time in the House and Senate.

That creates another complication: typically, the state has a uniform position in court cases and is represented by the attorney general. Legal fights between two different pieces of state government are rare, and they typically involve the AG's office representing one entity and appointing a special assistant attorney general to represent the other party.

It's unclear to what degree DiZoglio's months-long bid to audit the House and Senate now hinges on Campbell's opinion. When pressed on what happens if Campbell does not support the auditor's effort, DiZoglio said, "We will cross that bridge when we get to it."

"We have received the Auditor's letter and accompanying materials. Consistent with our statutory role and responsibility, we will review and respond in due course," a Campbell spokesperson said.

Legislative leaders responded Wednesday by reiterating their arguments, also aired by former Auditor Suzanne Bump, that the auditor does not wield the power to audit the Legislature.

"As previously stated, the Senate shares the goal of ensuring open and transparent government for the people of the Commonwealth, but the Auditor's office lacks the statutory and constitutional authority to audit the General Court," a Spilka spokesperson said. "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."

Mariano's office declined comment on DiZoglio's latest move and referred to his March correspondence arguing that the state Constitution "explicitly and repeatedly prohibits" an audit of the Legislature by DiZoglio's office.

In her lengthy memo to Campbell, DiZoglio laid out why she believes that existing law and the Constitution give her office the ability to investigate the Legislature.

The governing statute creating the auditor's office grants it the power to audit "accounts, programs, activities, and functions" of "all departments, offices, commissions, institutions and activities of the commonwealth," neither explicitly listing nor exempting the Legislature.

DiZoglio said at least one former attorney general, Joseph Warner, concluded in 1931 that the auditor can review all such entities unless they are "expressly exempted in the statute."

She added that the state Constitution on multiple occasions refers to the House and Senate as the "legislative department," arguing that therefore the chambers are "departments" subject to her audits.

Flanked by tomes of historical records, DiZoglio contended Wednesday that the Legislature had in fact been audited by the office she now holds 113 times dating as far back as 1850. The most recent audit, which examined cybersecurity measures in place at Legislative Information Services, concluded in 2006.

DiZoglio said she wants to probe a long list of topics, including House and Senate budgets, hiring, "spending and procurement information, information regarding active and pending legislation, the process for appointing committees, the adoption and suspension of legislative rules, and the policies and procedures of the Legislature."

"We have simply been requesting information from the Legislature and our office has been stonewalled," she said.

She also contended that the Legislature itself exerts oversight powers through its joint committees, which sometimes question executive branch officials about government business during public hearings.

"These long-standing practices have not yet given rise to a separation of powers objection, even though the legislative department also controls the budgets of the executive and judicial departments. Yet, when our office seeks only to exercise its authority to provide oversight of the legislative department without the budgetary powers that the legislature exercises over the executive and judiciary, legislative leaders take issue," DiZoglio said. "These arguments against transparency and accountability are nothing short of ridiculous."

Before her successful auditor campaign last year, DiZoglio served three terms in the House and two terms in the Senate. She was one of the most vocal critics of her own party's leadership during that tenure.

In 2018, during her push to rein in the use of non-disclosure agreements in the House, DiZoglio said from the chamber floor that she had signed such a deal "under duress" when she was working as an aide and her boss fired her following discredited rumors of inappropriate behavior.

Another frequent target of her frustration was the lawmaking process. In 2021, DiZoglio said private caucuses that Senate leaders convene with Democrats "seem like just another opportunity to get told what we're going to do after the decision has already been made."

"I find it unfortunate that anyone would personalize any effort to increase transparency, accountability and equity, and a Legislature that is frequently ranked as the least transparent legislature in the entire nation," DiZoglio said Wednesday about how her personal history with the Legislature influenced her attempted audit.

The Legislature has long drawn the ire of transparency groups across the political spectrum. Redrafted bills regularly emerge hours or minutes before they receive votes, others die quietly without ever being formally rejected, and some committees obscure how individual lawmakers vote on the intermediary decisions that advance or kill legislation.

Massachusetts is also one of the only states in the country whose Legislature is exempt from the public records law.

The right-leaning Massachusetts Fiscal Alliance praised DiZoglio's audit and said taxpayers should not cover legal bills for the House and Senate if the matter heads to court.

"The Massachusetts legislature cannot pass a budget on time, and they cannot even agree to their rules for their joint legislative committees. It's no secret that Speaker Rob [sic] Mariano and Senate President Karen Spilka oversee the most secretive and dysfunctional legislative body in America," MassFiscal spokesperson Paul Craney said in a statement. "The victims are the taxpayers who must deal with the consequences of their lack of transparency and accountability."

Ending her press conference with another jab at the Legislature, DiZoglio on Wednesday said "people are tired of the games" they see on Beacon Hill.

"They're tired of waiting on budgets well beyond the time that they're supposed to be reported out. Cities and towns are struggling right now waiting for the Legislature to get it together. We see right now legislative committees fighting with each other, the Senate and the House not speaking at times, bills being sent around to different committees, accusations occurring between the two legislative entities," she said. "Folks are fed up, they're tired. They want access. They want to know that their officials are not playing games with their taxpayer dollars. They want to know that they can trust their elected officials, and it's nearly impossible to be able to trust elected officials with the tax dollars that you're giving to the government if those elected officials will not give access to basic information about how those tax dollars are being spent."