State Auditor Josh Gallion said he will not follow state law that requires him to seek permission from the Legislative Audit and Fiscal Review Committee before launching a performance audit of a state agency.
Language inserted into the auditor’s budget bill by the 2019 Legislature set out that requirement. But a subsequent Attorney General’s opinion said that would be an unconstitutional intrusion by the legislative branch into an executive branch agency, and would likely be found unconstitutional.
"What I'm here to tell you is, I will follow the opinion of the Attorney General's office, and will not be seeking approval of performance audits," Gallion told the committee.
Instead, Gallion says he will inform the committee about his audit plans.
Some committee members argued the law is the law, until a court rules. And the Legislative Council's attorneys have said the same thing. But Gallion and others said an Attorney General’s opinion has the force of law until overturned by a court.
"You're comfortable ignoring the Legislature and ignoring the law?" asked Rep. Mike Nathe (R-Bismarck).
"That opinion is issued based on law, and governs the actions of elected officials until it is overturned by the court," Gallion answered.
"But the Attorney General is not the Supreme Court," Nathe replied.
Nathe said ignoring the law and the Legislature court hurt Gallion's efforts.
To get a case before the court, Gallion would have to initiate a performance audit without getting prior permission – and the legislature would have to initiate the action.
