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Auditor asks court to dismiss Clay County lawsuit

Auditor asks court to dismiss Clay County lawsuit

February 12th, 2019 by Bob Watson in Local News

State Auditor Nicole Galloway on Monday asked Cole County Circuit Judge Jon Beetem to dismiss a lawsuit filed earlier this month by the Clay County Commission.

The commission filed its lawsuit Feb. 1, then filed an amended version Feb. 4, challenging Galloway's efforts to do a performance audit of the county's operations, saying those efforts go beyond her constitutional authority.

However, Galloway's response, filed by Assistant Attorney General Joel Anderson, said the Clay County Commission's lawsuit was a "prematurely filed declaratory judgment action that attempts to forestall a county audit, requested by its citizens, on the grounds of hypothetical, alleged future injuries."

Anderson asked Beetem to dismiss "all claims on the ground that such claims are not justiciable, there is no reasonable likelihood of success on the merits, the Commission has failed to state a claim, and the Commission lacks standing" even to file its lawsuit.

The commission's lawsuit followed Galloway's serving the county with an administrative subpoena, demanding the county turn over all records the auditor's staff asked for as part of its audit of Clay County's records.

More than 9,000 people signed the petitions asking for the state audit; only 5,590 valid signatures from registered county voters were needed to initiate it.

The audit began in December.

Galloway said, in a news release earlier this month: "Within the first six weeks of this process, my team has encountered delays, roadblocks and evasive responses that make it challenging to complete audit work in a cost-effective way on behalf of the taxpayers of Clay County. My auditors are requesting basic information, and there is no reason why it should be this difficult.

"I will use the full authority of my office to ensure they get the answers they deserve."

When county officials didn't provide the minutes of all county commission meetings — including closed sessions — that auditors asked for, Galloway last month issued an investigative subpoena and the Clay County Commission filed its lawsuit, which said, among other things: "At best, the Auditor is seeking access to the Commission's attorney-client communications to conduct a management or performance audit of the County. Such an audit exceeds the Auditor's constitutionally prescribed powers."

However, Galloway's response Monday countered: "The SAO (state auditor's office) has the authority to issue administrative subpoenas insofar as necessary to conduct an audit, (but) subpoenas issued by the Auditor are not self-enforcing.

"Compliance with a subpoena issued by the Auditor may only be obtained in a court of competent jurisdiction. It is for the court, not the Auditor, to impose the penalty of contempt for failure to comply."

The auditor's response also noted Galloway "has taken no legal action to enforce the subpoena, and has, for judicial economy, agreed to take no further action on the subpoena pending orders of this Court."

If the auditor's office decided to enforce its subpoena, Anderson argued, it would have to ask a court to order that the subpoena be honored, and Clay County would have a right to argue against that order before it were issued.

In its lawsuit, Clay County argued it had already given the auditors access to many records, and Galloway should have to explain why her staff needs any of the closed meeting records before they are turned over.

In the response, Anderson wrote: "To determine compliance, proof would have to be marshalled and a hearing held.

"Further, the Commission cites to no law requiring an auditor to tell an auditee exactly how they are to be audited.

"Such a rule would defeat the purposes of an audit."

Meanwhile, he noted, "Although the Commission may assert an interest in protecting the confidentiality of some of its records, the Commission has failed to show that such interests are in danger of being harmed.

"Because the Commission failed to turn over records that were redacted for whatever purposes the Commission deemed lawful, and in fact turned over no records at all, breaching any alleged confidentiality is purely speculative."

Steph Deidrick, Galloway's spokeswoman, noted the rest of the audit work is continuing.

In a news release, Galloway said: "Thousands of Clay County citizens demanded accountability from their government.

"They deserve answers, not costly efforts to prevent auditors from fulfilling their duty under the law."