Buried deep within North Carolina’s 625-page, $30 billion state budget are provisions that give the Joint Legislative Commission on Governmental Operations, an oversight committee led by Republicans, the authority to investigate and search any entity that has received state funds for programs or services.
Republican Sen. Warren Daniel, whose district covers the eastern portion of Buncombe County, is a member of the commission. He says this power will “increase government accountability across the state.” (Meanwhile, other provisions in the budget block public access to legislative records.)
Several local leaders have expressed concern over the new provisions, saying that it is state government overreach.
“This new legislation involving the North Carolina Joint Legislative Commission on Governmental Operations is not only a significant expansion of state authority but also specifically moves the function of the commission well beyond its traditional role of overseeing state matters,” says Asheville City Attorney Brad Branham. “It is concerning that such immense power has been placed in a partisan commission.”
The expanded powers of Gov Ops
The commission, commonly referred to as Gov Ops, was created in 1975 to provide legislative oversight of public policies and state spending. Before its expanded powers, Gov Ops looked into organizations that received state funding, but its investigative powers were limited, relying primarily on openly accessible records and state-sponsored studies. The new provisions give lawmakers full authority to investigate “possible instances of misfeasance, malfeasance, nonfeasance, mismanagement, waste, abuse or illegal conduct” in regard to state funds.
The commission can seize any document or record from any entity “receiving, directly and indirectly, public funds,” including corporations, nonprofits, local governments and state universities. Gov Ops staff can enter any building or facility owned or leased by any entity receiving public funds without a judicial warrant.
All communications and requests from the commission are confidential. The recipients can only alert those within their organizations who will produce the documents. For example, recipients cannot alert their supervisors of the investigation or consult with legal counsel. Violating this rule “shall be grounds for disciplinary action, including dismissal,” the law reads. Additionally, anyone — elected or hired — who refuses to cooperate faces jail time and fines of up to $1,000.
The commission is composed of 42 members, 34 of whom are Republicans, including co-chairs Senate Leader Phil Berger and House Speaker Tim Moore.
Moore says that these rules are “benign” and necessary for the committee to properly oversee state funds.
“We have a constitutional obligation to oversee what the executive branch is doing and what our state funds are being used for,” says Moore. “This isn’t a power grab or anything of that sort. We just want the committee to be able to function as it was intended.”
However, critics say the changes turn Gov Ops into a “secret police force,” warning that the new policies have far-reaching implications.
“The commission is a massive overreach in power from Republicans in the state legislature. If you do business with the state and your business is registered at your home, the partisan legislative staff from Gov Ops could go into your home without a warrant to get documents, including computer files,” says Julie Mayfield, a Democratic state senator from Asheville. “That is a level of intrusion of government that I don’t think the majority of us want, whether we’re Republican or Democrat.”
The budget also has a number of provisions restricting public access to legislative records and information.
One provision allows North Carolina lawmakers to exempt themselves from public records requests. Current and former legislators, the law says, “shall not be required to reveal or to consent to reveal any document, supporting document, drafting request or information request made or received by that legislator while a legislator.” Under the state’s previous law, legislators were recognized as the custodians of their own records but had to file a specific exemption to withhold records.
Another provision will allow legislators to determine “whether a record is a public record.” Legislators now can decide to “retain, destroy, sell, loan or otherwise dispose of” their documents.
Daniel says that these new laws will keep the legislature efficient and save the state money. “We receive very expansive requests where people may ask for every correspondence for every member of the General Assembly,” Daniel says. “These kinds of requests don’t help increase transparency, they are just expensive and slow down the legislative process.”
Opponents say that these new rules will make it harder to uncover corruption. In a joint letter to the N.C. General Assembly, the N.C. Press Association, the N.C. Association of Broadcasters, the Carolina Journal, Radio One Charlotte and others outlined objections and called on lawmakers to rescind the budget language.
“The newly introduced amendment grants custodians the power to determine what constitutes a public record and allows for the destruction of records that could otherwise be essential for transparency and accountability,” the letter reads. “This change effectively creates a situation in which state lawmakers, who are also considered custodians of their records, could exempt themselves from public records law, denying citizens their right to scrutinize their government’s actions.”
Nonprofits in crosshairs?
Several local nonprofits have expressed concern related to the expanded powers of Gov Ops. Amy Upham, executive director of Blue Ridge Pride, an Asheville-based nonprofit that focuses on supporting the LGBTQIA+ community, says that the new provisions are excessive.
“The argument that these new rules will help to improve oversight over state funding does not make any sense,” says Upham. “I previously worked for the county, and there are already a number of processes and laws that ensure that state funding is transparent and used properly. The new provisions for this commission are unnecessary.”
Additionally, Upham is concerned about the commission potentially targeting disadvantaged communities. While Blue Ridge Pride has not received money directly from the state, it received state grant funding from Buncombe County, making the group a potential candidate for a Gov Ops investigation.
“Our current legislature has repeatedly enacted laws that directly target minorities such as the LGBTQIA+ and the African American community, and these new Gov Ops [provisions] are no different,” says Upham. “My biggest concern with this is that the Republican-led legislature will be able to target and search organizations with differing ideologies, all under the premise of improving transparency.”
Keynon Lake, executive director of My Daddy Taught Me That, a nonprofit focused on supporting and mentoring young men, echoed that sentiment. Lake says that his organization does not receive any state funding but has considered applying for grants in the past. Now, with the potential of a Gov Ops investigation, he’s not sure if it would be worth the risk.
“It’s intimidating for organizations to know that the government could come in at any time and start an investigation,” Lake says. “I worry that these allowances are going to scare organizations away from requesting state funds or grants and that it will ultimately hurt the people that they serve.”
From the city’s perspective, Branham says that the manner in which the legislation was passed is concerning.
“The City of Asheville believes the best legislation is made openly and through the traditional process,” says Branham. “Inclusion of nonfinancial matters such as this in the budget legislation is disheartening, given that it avoids open public engagement and review, and provides no opportunity to offer debate and amendment.”
He is unsure of the implications that the new provisions will have on the city.
“How impactful this will be to cities such as Asheville is yet to be seen and will depend greatly on the implementation of the new law by the commission itself,” says Branham. “However, as is always the case, the City of Asheville intends to comply with the legislation and has no reason to believe that it will be the target of any pending review by the commission in the near term.”