.jpg)
KEARNEY — 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. 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.
