The Delaware House passed one piece of legislation to enhance the power of the State Auditor and two related bills are on the way.
House Bill 6 cleared the House with unanimous support among members present in January. Still awaiting consideration in the Senate, the bill would allow the state auditor to issue subpoenas directly without going through Superior Court.
It also allows the auditor to effect service of such a subpoena, and to apply for a court order if a recipient fails to respond to a subpoena. Failure to comply with such a court order could be punished as contempt of court.
The bill's sponsor, State Rep. Ed Osienski (D-Newark), says the bill was brought to him by the auditor of accounts and would give the agency the same authority that other state agencies have, such as the Department of Insurance, the State Fire Commission, the Department of Labor and the Department of Education.
The bill comes just months after the State Auditor’s Office released its first Dual Employment Audit since 2017, which examines if any state employees are double-dipping with tax-funded compensation.
Delaware made it illegal in 1986 for the state to pay employees or officials for coincident hours of the workday — known as the Dual Employment Law — and requires employees who hold more than one job funded by state tax dollars to have their pay reduced on a prorated basis for any hours or days where the employee works both of their jobs.
Despite the state legally being required to have "clear policies and procedure" in place to enforce this provision and places the burden on supervisors to keep track of time records for those who are dually employed, several state agencies do not keep sufficient records of coincident time.
The findings revealed the most overlap occurred between members of the Delaware legislature or the governor’s administration who also teach part-time at universities or colleges, but at the time, the University of Delaware (UD) insisted it did not fall under the purview of the Dual Employment Law.
"UD did not provide sufficient official records to allow us to verify whether the employees incurred coincident time. We found that only one of the two employees, Ernesto Lopez, with potentially coincident time reduced their salary 10%, to account for time spent away on legislative business," the audit reads.
UD's general counsel sent a letter to the auditor in response: "To be clear: The University of Delaware is not subject to the Dual Employment Law, and the audit findings as to it are improper and misplaced. As provided in 29 Del. C. § 5822, the Dual Employment Law applies only to a State agency or its subdivisions. The Auditor’s Office has agreed in the past in writing, and again in a recent meeting, that the University is not a State agency."
But State Auditor Lydia York says HB 6 has been on her legislative agenda long before UD's refusal to cooperate with the Dual Employment Audit.
"I would suggest that this was quite frankly on my legislative agenda as early as 2023, but we're just sort of being very cautious with our legislative agenda and just doing one thing at a time, and last year, it was more important for us to get the right to do performance audits. We thought that was more important than being able to have subpoena power," York said. "So it precedes any other issues that may have arisen since then. Now to be clear, we also encountered a couple of instances where this would have been a really handy thing to be able to do."
In addition to HB 6, State Rep. Kim Williams (D-Stanton) has introduced two pieces of legislation on her own accord after seeing the audit herself.
“Seeing legislators or elected officials on an audit report — it's concerning, not only to us, but to them, to the public. And we never want anybody to be double-dipping," Williams said.
The first bill, House Bill 9, requires a paid elected or appointed official of the state, who is also employed by a state agency or a political subdivision of the state, to disclose their dual employment to the Public Integrity Commission (PIC).
Under the law, if PIC believes an elected or appointed official is receiving dual compensation, it may request an audit by the state auditor. If an employee is found to have received dual compensation, it must be reported to the employer for corrective action.
York says although she did not personally request this bill be brought forward, she believes it will continue to promote transparency within state government.
"I think that if we're going to pursue the 'transparency trolley' so to speak, that would be a useful thing for people to know — that the institutions whose salaries we've been supporting for my lifetime for sure, and actually I know it's been longer than that, I think that maybe they might be interested in knowing who the legislators are that are also being paid by some other source. This is just a matter of enhancing the actual scope of transparency and accountability," York said.
Williams has also introduced House Bill 38, which intends to officially clear up if Delaware public higher education institutions fall under the scope of the Dual Employment Law.
"HB 38 requires institutes of higher education that receive funding from the state to keep and provide records for an elected or appointed official who's employed by the institution of higher education," Williams explained. "This would work to fix the concerns addressed by the auditor, and we worked with UD, Del State and DelTech on this legislation."
If any of the higher education institutions violate the law, a first time violation would be $10,000, and a second or subsequent violation within five years of the first violation would be $50,000.
As far as UD's past belief it did not fall under the purview of the Dual Employment Law, Williams says she had no problem working with them on this bill.
"They were more than happy to work with me. No person who receives state money either as an elected official or an institute of higher education wants to be listed in an audit report. I can understand that. But they were very willing to work with me, so I'm not really sure what transpired between the two, but all three were very happy to work with me."
Both of Williams's bills await committee hearings in the House, but she is confident about support for the two pieces of legislation in both chambers.
