AG waiting for ‘legal dispute’ to weigh in on audit law

Sstate Attorney General Andrea Campbell.

Sstate Attorney General Andrea Campbell. FILE PHOTO BY MICHAEL DWYER

By COLIN A. YOUNG

State House News Service

Published: 11-27-2024 4:52 PM

BOSTON – Attorney General Andrea Campbell plans to stay on the sidelines in the donnybrook between Auditor Diana DiZoglio and the Legislature, at least until the two sides wind up in a “legal dispute” if DiZoglio seeks to exercise her new auditing authority voters approved earlier this month.

Massachusetts residents voted overwhelmingly this month to give DiZoglio the explicit power to turn her office’s microscope onto the House and Senate. Legislative leaders have long argued that DiZoglio’s effort would violate the constitutional separation of powers, and in the weeks since the election, top Democrats have said they are weighing possible changes to the law.

Amid the political maneuvering, Campbell’s legal interpretation of the situation is likely to be pivotal. And while she raised constitutional considerations about a potential ballot law a year ago, she said Tuesday she will not be offering that opinion on her own accord.

“There’s no role for my office to play right now. We certify the ballot question, the voters spoke. I respect the will of the voters. Now, the second piece is this law doesn’t go into effect until 30 days [after the results are certified]. So right now, nothing can happen into the law that just passed actually goes into effect,” Campbell said during an appearance on GBH Radio. “And then once that passes, the Legislature can respond to the auditor’s letter and say, ‘We’re going to give you X information or Y information’ in response to her. And if she feels as though she doesn’t get what she’s demanded of them, they both could say, ‘Well, we think we’ve given you an adequate amount.’ She can say, ‘You haven’t.’ Then they can create a legal dispute and then ask our office to get involved.”

The attorney general said she thought it was important “to clarify that for the public, because there’s this suggestion out there that we do” have a role to play at this stage.

“We do not. Give it 30 days, they’ll have to have their back and forth, and then, depending on what that dispute becomes, they can then seek to try to resolve it via litigation. Then we might be able to get involved,” Campbell said. “But right now, we’re dealing with nothing but hypotheticals.”

When she concluded in November 2023 that the auditor’s office did “not currently have the legal authority to audit the Legislature without the Legislature’s consent,” Campbell also said it was not clear that DiZoglio’s 2024 ballot question would entirely clear the way for the audit that DiZoglio is seeking.

“Should the initiative become law, we may need to consider whether, and the extent to which, constitutional limitations affect how the law would apply,” the attorney general wrote last year about the ballot question that passed this month with greater than 70% support.

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“Boston Public Radio” co-host Jim Braude pressed Campbell as to why she could not come out now and “make a pronouncement like you did when you certified the question, there was no obligation on your part to say there may be remaining constitutional issues. Why can’t you say now, if you believe it, there are no constitutional issues?”

Campbell said she can’t do that because “we don’t know that.”

Gov. Maura Healey said Monday that she would not “opine on the constitutionality or a current legal case,” but said she expects “everyone will work to implement” the voter-approved Question 1.

DiZoglio, though, has been seeking support from both Healey and Campbell, pressing each to pledge to uphold the law as it was approved by the voters and to allow her office to take the matter to court if need be.

“The amount of calls I’ve gotten saying don’t position @MassGovernor or @MassAGO. Let’s be clear. Asking colleagues who have the power to help – to help – is not ‘positioning’ them. This is no longer a ballot question – it’s the law. I do need my sisters in service, whom I respect, to help ensure it’s followed,”the auditor tweeted on Nov. 15.

When Campbell was asked two weeks ago about the passage of Question 1, her response was slightly different. She suggested then that her view of the “constitutional limitations” of the voter law could depend on exactly what information the auditor seeks.

“[W]e have to first see what the auditor is looking to actually audit, and then we will go back to our analysis that we provided before and have that conversation with the auditor and her team,” Campbell said Nov. 14.

DiZoglio’s taxpayer-funded office released its first attempt at auditing the Legislature about two weeks before Election Day. Top House and Senate Democrats refused to participate as DiZoglio’s team sought information about legislative finances, operations and communications, her office said, but the effort resulted in a 77-page report.

After Question 1 passed, DiZoglio sent a letter to House Speaker Ronald Mariano and Karen Spilka to revive that audit attempt, explaining that her office would “start with a review of high-risk areas, such as state contracting and procurement procedures, the use of taxpayer-funded nondisclosure agreements, and a review of your balance forward line item – including a review of all relevant financial receipts and information.”

On Tuesday afternoon, the top lawyers for the House and Senate sent DiZoglio a letter saying that her latest audit attempt “is untimely” because the voter law has not yet taken effect.

“When that process has concluded and 30 days have passed after the certification of the election results, the General Court will respond to any audit engagement letter that we receive at that time,” the letter read.