Lawmakers last Wednesday voted to withhold from the public a report on the effectiveness of a state program for treating developmental disabilities in children.
Since July 2015, the Legislative Service Office’s audit staff has been examining whether a state program has reduced K-12 special education costs by treating developmental disabilities at younger ages — birth through five years old. One phase of its report was released in September of 2016, but the second phase remains confidential after lawmakers voted to withhold its release while LSO staff seeks additional information.
The secret report spotlights the remarkable leeway one legislative committee has to keep its business hidden. Auditors say the secrecy is necessary to protect the work of a committee that asks probing questions of government employees, and often looks at confidential information and the performance of specific personnel.
The Legislature’s Management Audit Committee, which directs a small staff researching the efficiency of state programs, met in Cheyenne for two days last week. Most of an entire day of their deliberations, which included testimony from staff at both the Department of Education and the Department of Health, were conducted out of sight of the public.
A WyoFile reporter was asked to leave the committee room before legislative staff closed the doors for an executive session.
The statute that created the committee dictates an audit’s “findings and documentation are confidential and shall not be disclosed” by any lawmakers or staff of either the LSO or the agency being audited until lawmakers deem the report complete and vote to release it. The exception to this rule, according to statute, are discussions with the governor.
For a Wyoming transparency advocate, and even some lawmakers on the committee, the level of confidentiality is excessive. “They’re discussing programs with public money,” which taxpayers finance, said Jim Angell, the director of the Wyoming Press Association.
“I think dealing with the people’s business in an executive session is bullshit,” said Rep. Charles Pelkey (D, HD-45, Laramie), before the meeting. Pelkey is a first-time committee member and a former reporter.
After the meeting however, he moderated his tone somewhat, saying confidentiality for the auditing could sometimes be warranted given the sensitive nature of some of the staffers’ work, which includes looking at the effectiveness of individual employees. Personnel issues are largely exempt from state laws dealing with open records and open meetings.
In this case, the audit was not to look for inefficiencies or government waste in the early childhood education and intervention per se, but instead to see if it was reducing the costs of special education at the K-12 level, said Sen. Charles Scott (R, SD-30, Casper). The program may be paying dividends by treating children’s developmental needs earlier, Scott said before Wednesday’s meeting, thus reducing the need for special education later in a child’s schooling. “We’re looking to see if something’s working for a change,” he said.
The confidentiality around audits “is kind of excessive,” Scott said. “But it all comes out anyhow because you release the audit. It’s not permanently confidential.”
Wyoming citizens interested in this audit will have to wait a bit longer to see it. Some committee members felt more research was needed, and voted 9 to 1 to direct audit staff to gather more information before public release.
The law exempting the management audit committee is not unique to Wyoming. Audit offices, and the committees that oversee them, often need access to confidential data and ask agencies to discuss specific employees, said Brenda Erickson, an audit specialist with the National Conference of State Legislatures in Denver. “While an audit is underway oftentimes that information is held and it is confidential until it is released,” she said. “At that point it varies from state to state how much information becomes public.”
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Regardless of the special circumstances governing audits, Angell said the lengthy closed-door meeting is exemplary of privileges the Legislature has granted itself when it comes to transparency. When the Legislature wrote the public meetings act, he noted, it wrote it to cover state agencies and not legislative committees.
There are only a few ways an agency’s governing body can shut the doors of a meeting to the public and enter an executive session. Statute allows executive sessions for meetings with law enforcement officials to discuss threats to public safety, for issues dealing with specific employees, and for national security topics, among other reasons.
A legislative committee, in contrast, can call an executive session without any reason. Such occurrences are fairly rare, however. “They have tried to make their committee meetings and things as open as possible,” Angell said. “Especially during sessions.”
In a 2015 study on the integrity of state government, the Center for Public Integrity ranked Wyoming 33rd of all states for legislative accountability, and dead last for public access to information. The state was ranked 49th for state integrity overall.
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Public can’t see much of pending legislation
