Bill could boost auditor’s authority in judicial watchdog dispute

SACRAMENTO — A bill likely to soon land on Gov. Jerry Brown’s desk would clarify the state auditor has the power to audit state commissions.

AB 562 has moved quickly through the Legislature while the Commission on Judicial Performance has been challenging the auditor’s authority in San Francisco County Superior Court. The commission is seeking to block the auditor’s access to confidential judicial discipline records. Commission on Judicial Performance v. Howle, CPF515308 (S.F. Super. Ct., filed Oct. 20, 2016).

The bill passed its final committee test on Wednesday when the Assembly Accountability and Administrative Review Committee voted 6-0 to accept several Senate amendments. It will now head to the full Assembly, where it passed 77-0 in May.

AB 562 says, “A state agency includes a commission for purposes of the California State Auditor’s authorization to access specified documents.” It imposes a $5,000 fine for obstructing the auditor “with intent to deceive or defraud.”

Attorneys on opposite sides disagree about how much impact the law would have on the Commission on Judicial Performance case.

“The part about commissions would have made it pretty simple,” said the auditor’s attorney, Myron Moskovitz of the Moskovitz Appellate Team in Piedmont. “One of their claims is they aren’t covered because they are set up by the state Constitution.”

“It does not have any effect on the CJP v. Auditor case,” said Michael von Loewenfeldt, a partner with Kerr & Wagstaffe LLP in San Francisco, the firm representing thecommission.

The commission never argued that it wasn’t a commission, von Loewenfeldt added, and the bill would not affect the question of whether the auditor “can constitutionally override the confidentiality established by the commission.”

The commission case did not come up during Wednesday’s hearing. The bill’s author, Assemblyman Al Muratsuchi, D-Manhattan Beach, has said on several occasions that AB 562 was inspired by interference from the University of California Office of the President into an audit of its spending practices released in March.

A spokesperson for Muratsuchi’s office said AB 562 was not prompted by the commission’s lawsuit.

But State Auditor Elaine Howle and lawmakers raised the issue repeatedly when AB 562 passed the Senate Public Safety Committee in July.

“We are in the process of spending a lot of taxpayer dollars on attorneys and going to court” in the case, Howle told that committee.

“We firmly believe we have the authority to audit the commission,” she added. “So I think Mr. Muratsuchi’s bill just strengthens and hopefully gives us another tool to really encourage agencies to comply.”

Howle went on to say that agencies being audited are increasingly bringing in attorneys in order to avoid complying with her office’s demands.

Senate Public Safety Committee Chair Nancy Skinner, D-Berkeley, later said, “My own particular point of view is that that agency is far more egregious ... basically saying that they have no right even to be audited even though it’s clear in the Constitution that they do and yet the court has not yet dismissed their case.”

AB 562 showed up in late March when Muratsuchi introduced it through the gut-and-amend process. This occurs when a legislator takes an unrelated bill and swaps out the entire contents for a new purpose. The process is sometimes used to respond to scandals that come to light during a legislative session.

The Joint Legislative Audit Committee, chaired by Muratsuchi, ordered Howle to audit the commission in August 2016. The request followed years of complaints about secrecy from commission critics.

The commission responded by suing to block portions of the audit, the first in the agency’s 57-year history. Its attorneys claim the California Constitution gives it the power to withhold certain records from the auditor to maintain privacy for judges who have faced discipline proceedings.

In late August, San Francisco County Superior Court Judge Suzanne R. Bolanos ordered supplemental briefs in the case. Bolanos raised the possibility the commission could submit redacted records.

Moskovitz quickly rejected the idea, saying it would damage the “integrity” of the audit.