Attorney general’s opinion casts doubt on powers of Legislature’s inspectors general

Senators say lawmakers need meaningful insight into problems involving state prisons and child welfare cases

By: - August 16, 2023 12:44 pm
Nebraska State Capitol Building

The Nebraska State Capitol Building in Lincoln. (Rebecca S. Gratz for Nebraska Examiner)

Editor’s note: This story has been updated to include additional reaction to the advisory opinion.

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 advisory 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.

Nebraska Attorney General Mike Hilgers  (Zach Wendling/Nebraska Examiner)

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.”

State Sen. John Arch, District 14. (Courtesy of Unicameral Information Office)

“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.”

Lincoln Sen. Danielle Conrad, who is an attorney, said she disagreed with some of the AG’s legal conclusions and was concerned that an executive branch official, the attorney general, was seeking to weaken the Legislature’s “checks and balances” role involving state agencies.

Crises caused creation of offices

She said the Legislature created the inspectors general offices because crises involving the state prison and child welfare systems weren’t being remedied by the attorney general or executive branch.

State Sen. Danielle Conrad of Lincoln  (Zach Wendling/Nebraska Examiner)

“That’s why the Legislature stepped in,” Conrad said, emphasizing that an AG’s opinion is only advisory.

“Let’s not get our hair on fire too fast,” she said.

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.

Probed St. Francis debacle

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 state cancelled its contract with St. Francis in December 2021, three months after the inspector general for child welfare, Jennifer Carter, called for termination because the agency wasn’t fulfilling its legal obligations despite the infusion of $110 million in extra funds.

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.

In a joint statement Wednesday afternoon, State Ombudsman Julie Rogers, whose office oversees the IGs, Doug Koebernick, the Inspector General of Corrections, and Carter defended their work as a “bedrock” of accountability and “good government.”

They said they appreciated the support of the Speaker of the Legislature and will continue to do their work under the current law that remains in effect.

‘Meaningful improvements’ result

“The OIGs’ investigations into deaths and serious injuries of children in the state’s care and deaths of incarcerated individuals and conditions of confinement have led to meaningful improvements to these systems over the last decade,” the statement said.

Legislators defended the work of the IGs in response to a request for information from Hilgers. They 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 of investigation to the inspectors general, who can pick and choose what they investigate independent of control by senators.

The attorney general 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. A similar bill failed to advance in the 2022 session.

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.”

Officials with DHHS also said that they were beefing up their internal investigations, though legislators questioned how robust such probes would be.


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Paul Hammel
Paul Hammel

Senior Reporter Paul Hammel has covered the Nebraska state government and the state for decades. Previously with the Omaha World-Herald, Lincoln Journal Star and Omaha Sun, he is a member of the Omaha Press Club's Hall of Fame. He grows hops, brews homemade beer, plays bass guitar and basically loves traveling and writing about the state. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation.