KEARNEY, Neb. — Legislative leaders are embracing potential changes to state law meant to reinforce their oversight role after Nebraska’s top prosecutor last year questioned the constitutional scope of two legislatively empowered investigators.

The in-progress proposal, sitting at about 126 pages, would create a formal legislative division of oversight over the state’s other branches of government. It would cement the Legislature’s watchdogs for child welfare and corrections, the “inspectors general” of the two areas, underneath sections of law governing general legislative authority. The changes were outlined Friday at a retreat for the full Legislature in Kearney before lawmakers reconvene Jan. 8 for a 90-day session.

The watchdogs investigate incidents or complaints about cases largely handled by the Nebraska Department of Health and Human Services and Nebraska Department of Correctional Services, such as allegations of child sexual abuse or deaths of inmates in state care.

“This is like the beginning,” State Sen. John Arch of La Vista, speaker of the Legislature, said Friday. “We’re trying to lay out some foundational blocks and reorganize for the future.”

The new division would work under a new Legislative Oversight Committee, which would replace a different committee and appoint a division director.

The committee’s nine members would be:

• The speaker of the Legislature.
• Chair of the Executive Board (the number-two member of the Legislature).
• Chairs of the Appropriations, Health and Human Services and Judiciary Committees.
• Four at-large state senators.

Separation Of Powers

Nebraska Attorney General Mike Hilgers in an August 2023 attorney general’s opinion questioned the constitutionality and power of the watchdogs employed by the legislative branch, where Hilgers most recently between 2017 and 2022, less than a year before releasing his opinion.

Hilgers, who in his final two years as a senator chaired the Executive Board, argued the investigators violated separation of powers and gave legislative officers “virtually untrammeled power to impede, control and access the information of both of its co-equal branches of government.”

“The Inspectors General have breath-taking power,” Hilgers wrote to the leaders of Health and Human Services and Correctional Services who requested the opinion. Hilgers said investigators had:

• “On-demand access” to computer systems.
• Access to information without subpoenas.
• The “power to impede” law enforcement investigations and “conscript” their resources or information.
• The ability to obtain “unfettered physical access to the facilities of other branches.”

“Far from creating the conditions for dynamic compromise, the tools within the Acts are designed to set a Legislature on a collision course with a co-equal branch without its express consent or approval,” Hilgers wrote. “We conclude that the path of the Acts is not a constitutional one and that the tools and reporting requirements contained therein are unconstitutional.”

Attorney general’s opinions are advisory and don’t carry the same weight as judicial decrees or legislation.

But using the opinion, the executive branch agencies shut off access to the Office of Public Counsel, which is also known as the Ombudsman’s Office. This included the state’s ombudsman who oversees the inspectors general and wasn’t cited in the AG Office’s opinion.

“Independent oversight is very important, and it is good news that the Legislature will continue with its important role,” Public Counsel Julie Rogers, the state’s first inspector general for child welfare, said Friday.

History Of The Office Of Public Counsel

The Ombudsman’s Office was created in 1969 to receive complaints from the public about state agencies, excluding the courts, Legislature, Governor’s Office and local political subdivisions.

Over time, the office’s authority has been legislatively expanded after key incidents:

• In 1976, created a new deputy public counsel for corrections after the 1971 prison riots in Attica, New York.
• In 1993, designated to receive and respond to complaints from state employees about “gross inefficiency and misconduct” under new whistleblower laws.
• In 1994, a new deputy public counsel for welfare services was added in response to the restructuring of the delivery of state welfare services.
• In 2008, expanded oversight jurisdiction into county and city jails, as well as a new deputy public counsel for institutions amid concerns over state-run facilities beyond the state’s prison system (youth regional treatment centers, Beatrice State Developmental Center, regional centers and veteran’s homes).

The inspectors general positions were created in the 2010s after legislative investigations as well.

The inspector general for child welfare was created in 2012. It passed 49-0 after reviewing state attempts to privatize child welfare. The corrections position came in 2015. It passed 47-0 after the 2013 murders in Omaha by former state inmate Nikko Jenkins.

The Nebraska Supreme Court has interpreted state laws to prohibit Nebraska families from suing the state or local political subdivision and alleging negligence when a loved one is harmed or killed in the care of state or local officials. This has included double-bunking state prisoners who have been killed in state corrections as well as siblings who alleged a pattern of abuse in foster care.

Marshall Lux, Nebraska’s ombudsman for 38 years before his retirement in 2018, last year defended the office as helping plead for fairness and equity for Nebraskans in an “otherwise cold and indifferent state bureaucracy.”

“Carrying out this mission often involves quick reactions, creative problem solving and a sensitivity to the feelings of the common citizen lost and helpless in a bureaucratic maze,” Lux wrote in an Oct. 3, 2023, column for the Nebraska Examiner.

Improving Effectiveness And Efficiency

State Sen. Brian Hardin of Gering described the cases that the inspectors general investigate as “flash points.”

He said lawmakers want to “properly, tenderly, holistically go into those situations and, at the end of the day, we want it [government services] to be healthier.”

Hardin, one of two announced candidates competing for chair of the Legislature’s Health and Human Services Committee, said he agreed with Hilgers on separation of powers concerns, as well as with Arch that the Legislature needed to more broadly think through its oversight power.

“It’s always been there, and it’s an absolutely necessary and unfortunate part of society,” Hardin said.

State Sen. Ben Hansen of Blair, the current HHS Committee chair, and only announced candidate for Executive Board chair in 2025, said he didn’t initially think changes were needed.

But after working closely with Arch, he says the changes will help with effectiveness and efficiency. He hopes oversight is never needed, coming after something has gone wrong.

“It seems like a lot of the changes aren’t changing the direction of the initial intent of the oversight,” Hansen said. “We’re just now, I think, streamlining it and making it a little bit easier for us as a Legislature to act.”

The proposal would remove mandatory access to computers, providing that information would still be shared “in the most efficient and timely manner” and that is the “least burdensome” while maintaining confidentiality.

The executive or judicial branches would be able to object to requests for the production or disclosure of “legally privileged information,” which isn’t defined in the proposal.

‘A Very Fragmented System’

After Hilgers’ opinion, the Office of Public Counsel, including the inspectors general, lost access to state facilities for about six months. Inspector General for Child Welfare Jennifer Carter said in February that her office wasn’t notified when a child was seriously injured or died in state care, even as her office is required to investigate how those cases were handled.

Arch and State Sen. Ray Aguilar of Grand Island, the 2024 Executive Board chair, signed a “memorandum of understanding” that largely restored access for the inspectors general to levels before the 2023 opinion. It was the first time the watchdogs lost access.

The agreement ends at the end of the upcoming legislative session, scheduled for mid-June.

Arch, the only announced candidate for speaker in 2025, said the Legislature has two main duties: to legislate and appropriate. Those require information, which the watchdogs help with.

“We’re looking at systems. We’re looking at processes,” Arch said. “We’re looking at should we legislate.”

The speaker described current oversight as “a very fragmented system” in part because the power has been expanded after specific incidents.

Arch was one of four lawmakers to offer legislative fixes to Hilgers’ opinion this spring. Instead, Arch led his colleagues in taking a step back and creating a special committee to look at the Legislature’s oversight function holistically. That committee included about a dozen lawmakers.

‘One Swing At The Plate’

State Sen. Merv Riepe of Ralston, the second announced 2025 candidate for HHS Committee chair, and a previous HHS chair in 2017 and 2018, was part of that group as a member of the Executive Board. He said oversight is about being informed.

Riepe said he agrees in creating clear lines of delineation between the state’s three branches of government and planning ahead instead of waiting for the next “big crisis.”

He pointed to foster care and the state’s failed contract with Saint Francis Ministries of Kansas, which underbid its lone competitor in 2019 to handle child welfare services in eastern Nebraska. The contract bid for Saint Francis was a fraction of its competitor but ended up costing millions more for financial mismanagement and under-performance. The five-year contract was terminated early.

Lawmakers, led by Arch, changed the state’s contract procurement process this spring as a result. He helped investigate the contractor’s problems as a former HHS Committee chair.

“You need to get this right the first time,” Riepe said of foster care. “They got that one real, real wrong.”

Hardin agreed: “You might only get one swing at the plate.”

The Taxpayer’s ‘Eyes And Ears’

State Sen. Danielle Conrad of Lincoln, who has been highly critical of Hilgers since his opinion on the inspectors general, said oversight legislation will be a “hallmark issue” in 2025. She viewed the opinion as a symptom of recent actions by the executive branch she disagreed with, which addressed voting rights and the public’s right to petition the government.

“Legislative oversight isn’t really about legislative power for its own purposes,” Conrad said. “It’s about ensuring the peoples’ branch are ensuring a good value for the taxpayers and have eyes and ears on troubled areas of state government so that we can make sure that vulnerable populations are not being harmed.”

Conrad said Hilgers threw a “wrench” in the process but offered “just an opinion.” She said leaders can recognize that each branch of government has an important role and that checks and balances are needed.

Still, lawmakers are moving in the right direction, Conrad said. She said the Legislature will not concede any constitutional oversight authority, “no matter what the attorney general says in his opinion.”

“Never before in state history have we seen an executive branch this brazen with executive overreach and defiance of the will of the people and interference with individual liberty,” Conrad said. “It’s critically important … that the Legislature steps forward to ensure not only a separation of powers, but a strong check and balance on that executive overreach, which is dangerous to individual liberty.”

‘Sunlight Is Always Better’

Arch said the final proposal likely won’t include all needed fixes, some of which might be added through amendments. He noted future oversight could include the state rules and regulations process or into state contracts or other spending decisions.

Riepe and Conrad are looking into the rules and regulations process, which Riepe said is meant to put many rules or regulations “on trial” and see which make sense.

State Sen. Carolyn Bosn of Lincoln, the only announced 2025 candidate for Judiciary Committee chair, said the Legislature has to be able to trust the inspectors general and understand what limitations future legislation might have on access to or accuracy of information.

“We have to be humble enough to say, ‘We tried this and it didn’t work,’ and somebody’s coming in to review with a completely third perspective, saying, ‘This could use some cleanup,’” said Bosn, a former prosecutor.

“I think it’s an opportunity for transparency and sunlight,” Bosn continued. “Sunlight is always better.”

This story was published by Nebraska Examiner, an editorially independent newsroom providing a hard-hitting, daily flow of news. Read the original article: https://nebraskaexaminer.com/2024/12/16/improving-oversight-eyed-as-a-ha...