By Paul Hammel
LINCOLN — The Nebraska Attorney General’s Office is casting doubt on the powers of “inspectors general” appointed by the Legislature to look into problems concerning state prisons and child welfare cases.
In a 38-page legal opinion issued Wednesday, the AG’s office says that investigative powers conferred on the inspectors general violate the separation of powers clause of the State Constitution and “significantly impairs” the powers of the Executive Branch and state judiciary to govern their operations.
“The traditional tools of legislative investigations — voluntary requests for information and subpoenas for documents and testimony — allow each branch to protect its interests,” stated the opinion, signed by Attorney General Mike Hilgers.
He argued that the IG’s power to obtain “immediate access to the Departments’ and Division’s documents, information, and facilities” went beyond that and violates the “constitutional responsibilities and interests.” of the executive and judiciary branches.
State Sen. John Arch of La Vista, the Speaker of the Legislature, said Wednesday that further review of the AG’s opinion is required but that the Legislature will “develop a strategy” to continue oversight of two agencies that carry “a high-level of risk for the populations served.”
“That responsibility and intent does not change with the opinion issued by the Attorney General,” Arch said in a statement. “The question is simply what process can the Legislature adopt that both fulfills our responsibility to exercise oversight and is in compliance with the provisions of the Nebraska Constitution.”
Two offices created
The State Legislature created two inspector general offices to investigate suspicious deaths and serious injuries within the Nebraska Department of Corrections, and allegations of sexual abuse and cases of self harm involving foster children and those housed at state youth treatment facilities.
The office of Inspector General for Child Welfare was established in 2012 to provide increased accountability over the state’s child welfare and juvenile justice systems. The Inspector General for Corrections was created in 2015 amid a scandal involving the wrongful release of dozens of prison inmates and other concerns.
The child welfare inspector has provided critical public disclosures about problems with the privatization of child welfare, conditions at the state’s Youth Rehabilitation and Treatment Centers and the costly mistake in awarding a child welfare contract to St. Francis Ministries.
The corrections inspector, through an annual report and other probes, has explored staffing deficiencies in state prisons, reported on gaps in medical treatment and explored violent prison disturbances and in-custody deaths.
Legislators, in response to a request for information from Hilgers, argued that in order to effectively legislate, state senators need to be adequately informed about what’s going on in state agencies.
But Hilgers, in his opinion, said the Legislature wrongly delegated its powers to the inspectors general, which are largely independent of control by senators.
He contrasted their authority with that of the legislative auditor, who must obtain the permission of the Legislature’s Performance Audit Committee, after outlining the scope of a proposed audit, before proceeding.
The issue of whether the IG’s offices amounted to “constitutional overreach” came up during the 2023 session of the Nebraska Legislature, when State Sen. Tom Briese of Albion introduced a bill to clarify the powers of the inspectors general.
Bill failed to advance
Legislative Bill 215 failed to advance after lawmakers said they expected a senator to request an AG’s opinion on the issue.
The opinion issued Wednesday was requested jointly by the directors of the state prison system and the Department of Health and Human Services.
Representatives of DHHS and the state judiciary had testified at the hearing on LB 215 that the investigative powers of the IG’s represented “constitutional overreach.”
State Court Administrator Corey Steel testified that allowing an inspector general to “investigate and question judges’ court orders pertaining to juvenile cases” raised grave constitutional concerns.