Nebraska AG opinion blasts Legislature-created inspectors general as unconstitutional

In a 38-page opinion, Attorney General Mike Hilgers said the legislative branch ran afoul of the separation of powers clause in the Nebraska State Constitution by giving the inspectors general “untrammeled power to impede, control, and access” information of other government branches.

Hilgers also said the legislation creating those offices allows the inspectors general to operate without oversight or outside the direction of the Legislature, and that those officials are more difficult to remove than state senators themselves.

“Far from creating the conditions for dynamic compromise, the tools within the (Inspectors General Acts) are designed to set the Legislature on a collision course with a co-equal branch without its express consent or approval,” the opinion states.

The "collision course" alluded to in the attorney general's opinion has been a long-simmering dispute at the Capitol since the offices of inspectors general were first created nearly a decade ago.

The Office of Inspector General for Child Welfare was created in 2012 following the state's controversial attempt to privatize the child welfare system. The office was later authorized to provide oversight to juvenile probation.

A second legislative office, the Office of Inspector General for the Nebraska Correctional System, was passed into law in 2015 after dozens of inmates were released early, including Nikko Jenkins, who was later sentenced to death for murdering four people in Omaha.

Doug Koebernick has served as the inspector general of prisons since the office was created. Jennifer Carter was appointed inspector general for child welfare in 2020.

Since their inception, the Legislature has altered or expanded the purview of both offices, often over the objections of the departments and agencies they provide oversight to.

The opposition came to a head earlier this year, during a Feb. 3 legislative hearing on a bill (LB215) from Sen. Tom Briese of Albion clarifying and expanding the duties of the offices of inspectors general.

During testimony, State Court Administrator Corey Steel told senators that judges should remain free to adjudicate youth to probation "without the threat of investigation by another branch of government."

Attorneys from the other departments also raised concerns about what information inspectors general had access to, their ability to co-opt law enforcement investigations and the implications of investigations on state employees.

The bill from Sen. Tom Briese of Albion expanding the powers of the inspectors general was not advanced from the Executive Board this year. Briese speculated at the time the attorney general could be asked to weigh in on whether or not the bill met constitutional muster.

On Wednesday, the attorney general — part of the executive branch — seemed to sympathize with the arguments put forward at the hearing earlier this year.

Hilgers said that unlike inspectors general offices in other states, which are assigned to the executive branches they are providing oversight to, Nebraska's inspectors general operate under the purview of the Office of Public Counsel, commonly referred to as the Ombudsman's Office. Julie Rogers, who was the inspector general for child welfare before Carter, is now the state's ombudsman.

While the Legislature "may make voluntary requests for information and issue subpoenas," Hilgers said the inspectors general are able to conscript employees from other branches of state governments into their investigations, which violated the separation of powers clause.

They are even able to force law enforcement agencies or prosecuting attorneys to turn over information to them, which the attorney's general office said infringed upon those government branches' autonomy.

"The Executive and Judiciary cannot assert a privilege if their employees must hand over documents on demand," Hilgers wrote. "Nor can those branches assert a privilege if the Inspector General may visit the departments' facilities unannounced."

The opinion also questions whether an act by a previous Legislature to create an office of inspector general — which the attorney general's office said was originally for a specific purpose — can be continued in perpetuity without reauthorization by subsequent Legislatures.

"We do not question on legislature's authority to choose to continue an investigation initiated by its predecessor," the opinion states. "We only conclude that permanent and unsupervised delegations of constitutional authority exceed the Legislature's constitutional power."

The attorney general's opinion is not binding. Discussion about what changes to make to the law — if any — will likely wait until Legislature convenes for its 60-day session in January.

Speaker John Arch, in a response on Wednesday, said the Legislature "will need to take some time" to review the opinion and the issues raised.

Arch said lawmakers' intent to exercise oversight of services “that can carry a high-level of risk for the populations served” does not change with the attorney general’s opinion letter, however.

“The question is simply what process can the Legislature adopt that both fulfills our responsibility to exercise oversight and is in compliance with provisions of the Nebraska Constitution,” he said.