While privatizing some of the work that government does may sound like a good idea, it may be unconstitutional says Representative Steve Simon (DFL- Hopkins/St. Louis Park).
The legislature is considering changing the law and allowing counties to have private accounting firms audit their financial records instead of the State Auditor’s office. Representative Simon says because that is one of the “core functions” of the State Auditor’s office described in the Minnesota constitution, the courts would eventually overturn the law.
He cites a Minnesota Supreme Court case from 1986 (Mattson v Kedrowski)
“There the legislature decided to take the state treasurer’s function, or most of it, most of the core functions and just transfer it over to the department of finance over the obvious objection of the state treasurer. We don’t have a State Treasurer anymore but we did then.” said Representative Simon. “The bottom line of the case as I read it is we can’t do that. And so they basically ordered the legislature to put it back. And they said you can’t take core functions of an office listed in Section one of Article Five of the state constitution, which this is, and you just can’t do that. You can’t take their core functions and put it somewhere else because that’s constitutionally prescribed.
“So as I read this case, I think the bill, despite your good intentions would very likely be unconstitutional and overturned by the courts. You just can’t be taking, wholesale, core functions of these state agencies, remember these are not just state agencies like the department of agriculture or the historical society, they’re separate constitutional officers, just like the Governor is, and take those functions and just kind of farm them out.
“So I’m concerned from a legal standpoint, whatever the merits of the bill may be, that we’re in big trouble because of that case and if this were to be in law there’s a good chance that it would go the other way, that the Supreme Court would tell us we can’t do this.”
Who is more trustworthy to do an audit? Government or corporations?
Representative Kirk Stensrud (R-Minnetonka) would like to give counties the option of having a private firm audit their books instead of the State Auditors office.
Representative Stensrud said “I think to infer that somehow scandals are monopolized by private industry, I think some of our most strident and striking scandals are in the government, so to think that anybody is more scandalous, government or private, I think we share equally in that”.
Stensrud said he couldn’t understand how it would cost more money for the state to oversee a private audit than to actually drive to a county and do the audit.