Opinion: State law still provides many tools for Iowa auditor

I read with interest State Auditor Rob Sand’s June 8 guest essay, “New pro-corruption law stacks the deck for insiders against Iowans.” While I agree with him that the people of the state have a strong interest in making sure that corruption and waste in government is uncovered, the law is a lot less dangerous to the cause of good government than he fears.

The new law sets up a “troika,” consisting of the auditor, the governor, and the agency head concerned, with the authority to make a final determination on whether Sand will be able to access information which a state agency either is not allowed to, or does not wish to, disclose.

At first glance, a reading of the new law supports Sand’s position. He will not be able to investigate many matters in an agency over the objection of the governor and her agency head (who in most cases, of course, is dependent on her for continuance in office.) And the law clearly states that if the troika rules against Sand, he cannot go to court to get access to possibly relevant information.

However, the law cannot be properly interpreted without reference to the Iowa Administrative Procedure Act, or IAPA, which provides him with an abundance of legal tools against stonewalling by or on behalf of rogue state agencies.

The IAPA was adopted by the Legislature in the early 1970s in an attempt to regularize and make fair administrative actions where Iowans might be affected. It sets up a system of checks and balances that will allow Sand to break through any unjustified stonewalling by an agency under audit. The IAPA provides a toolbox of quasi-judicial procedural rights and evidentiary rules for parties in contested cases before a state commissions, which presumably will include cases before the troika established under the new law.

Now, one might suspect that since the new law was adopted recently, it overrides the IAPA to give the troika the final say, with no recourse to the courts. Usually, in a conflict between statutes, the most recently enacted prevails. However, the Legislature, in writing the IAPA, added general override clauses which provide that if a subsequent Legislature is to cut back on IAPA protections, the new law has to cite the IAPA by name, for example, in such words as “The provisions of the Iowa Administrative Procedure Act notwithstanding, the decision of (the troika) cannot be appealed to the court.” Otherwise, the IAPA prevails over the newly adopted statute. Since my own legislative service ended over 40 years ago and I am not privy to the intentions of the bill’s supporters, I can only speculate why they did not put in an override clause. But they did not do so, and I strongly support that decision. Since the bill has no override clause in it, the protections of the IAPA would be available both to the auditor and to the agency involved in his search for audit information.

Furthermore, the IAPA may have an impact on the composition of a troika set up to deal with a particular issue. The IAPA has strict rules against hearing panel members serving as prosecutor, judge, jury and executioner. Since the agency head, Sand, and possibly even the governor, may have been heavily involved in the case where Sand is denied access to disputed information, the IAPA does not allow them in such a case to serve as a member of the troika, and presumably they would often have to recuse themselves and have disinterested persons take their places on a troika convened for a given case.

Finally, the IAPA allows all final decisions by state agencies, presumably including troika decisions, to be reviewed by the court by the process of judicial review. Thus, the ban on Sand suing the agency or the governor over an adverse troika ruling in practicality merely means that he would have to follow the IAPA’s procedure for judicial review and not some other judicial procedure. The powers of the court under IAPA judicial review are strong enough to provide any relief that the situation might call for.

Given today’s toxic political climate, whenever you have, as in Iowa, a situation where there is overwhelming power in one party, but there is one elected “lone wolf” of the minority party with the power to inquire into the doings of the majority, there can be temptation on the majority side to use the levers of government to cover up embarrassing situations, and a similar temptation on the side of the “lone wolf” to use the powers of his office, for example, to harass a political opponent with an unjustified audit. The new law, viewed in conjunction with the IAPA, provides Sand with the powers he needs to investigate actual scandals and mismanagement, while preventing harassment of government officials for purely political purposes.

Walter Conlon is a retired former attorney who served three terms in the Iowa House. He lives in Muscatine.

This article originally appeared on Des Moines Register: Opinion: Law still provides many tools for Iowa auditor Rob Sand