Evolving fix for Nebraska legislative oversight faces continued resistance

LINCOLN — The Nebraska Legislature’s Executive Board heard testimony Tuesday about the effort to clarify its oversight of state agencies after Attorney General Mike Hilgers and Gov. Jim Pillen sought to limit legislative reach.

Legislative Bill 298, sponsored by Speaker John Arch of La Vista, would reconstitute many functions of the Offices of Inspectors General for child welfare and corrections and place them under a newly created Division of Legislative Oversight as part of the Legislature. 

This design would operate as the legislative branch’s eyes and ears for how the money it spends on behalf of taxpayers is being used, primarily by the executive branch. The new division would report to a new Legislative Oversight Committee picked by the Legislature’s Executive Board.

“We aren’t police,” Arch said during his testimony about the reasons behind the bill. “Our requests are not part of a criminal investigation. Our purpose is to legislate and to appropriate. We can’t do either without information.”

Addressing Hilgers’ opinion

LB 298 was built this way in part to get around a 2023 legal opinion from Hilgers that questioned whether the Legislature had gone too far by offering its inspectors general too much power over executive branch functions.

The watchdog roles continue to function under a temporary agreement with the executive branch that, unless extended, will end later this year.

Arch said the Legislature and executive branch were seeking a balance to make sure state senators get the information they need to hold the executive branch accountable and that the executive branch remains free to carry out its work.

Said Arch: “The goal of LB 298 is to address the issues raised in the AG’s opinion, but also, again, to lay down a foundation and build an oversight structure that is … constitutionally sound and maintains and grows legislative oversight in Nebraska.”

Hilgers testified in neutral about the bill on Tuesday, saying that he believed Arch and the Legislature were headed in the right direction but that “the changes in LB 298, while helpful, do not alleviate the constitutional problems.”

Hilgers said he was encouraged by the work and saw a path to permanently securing legislative oversight without trampling on the ability of the executive branch to carry out the policy directives of the Legislature independently.

However, he said the Executive Board and Arch would need to continue to work to ensure the amendment they offered, AM 238, included all of the negotiated changes between the branches and did not accidentally create new powers that go too far.

“I think Nebraskans will welcome this being resolved in a legislative room rather than a courtroom,” Hilgers said.

More details about bill

Under the bill, two-thirds of the Legislature would have to approve hiring an executive director for the new oversight division, aiming to ensure the division is led by a person “without regard to political affiliation and on the basis of integrity, capability for strong leadership and demonstrated ability.”

Improving oversight eyed as a ‘hallmark issue’ of 2025 legislative session

The Legislature’s independent watchdogs would retain subpoena power to demand documentation and answers, a key lawmaker concern. However, using that power would require a majority vote of the Executive Board. Disputes would head to court.

Part of the design creates a more careful way for the executive branch to share sensitive information with the Legislature, through the new oversight division, and clarifies hard limits on sharing confidential information publicly.

It would also limit the public-facing reports of the oversight division to aggregating information and summarizing results that might otherwise be confidential, which some argued risks limiting the effectiveness of public pushes for change.

The Office of Public Counsel (the Ombudsman’s Office), which reviews and investigates taxpayer complaints about state agencies, would remain a standalone division for the Legislature.

Courts still unhappy

One person who testified against LB 298 represented the judicial branch, Corey Steel, the Nebraska state court administrator. His complaints, much like those from Hilgers, focused on direct access to information held by another branch.

Steel said the courts are willing to share requested information with the legislative branch and that the courts’ opposition is fluid, based on how the final bill implements inspector general for child welfare access to data on juvenile probation, which the courts oversee.

“One branch of government may not unduly interfere with the ability of another branch to perform its essential functions,” Steel said.

Kenny Zoeller, the policy research director for Pillen, testified in neutral and thanked Arch for his work on LB 298. Zoeller said the governor intends to provide the Legislature with what it needs but that Pillen has a duty to follow his best understanding of what is legal.

“Moving forward, the governor wants to ensure the Legislature gets the information it needs for legislation and to legislate in a constitutional way,” Zoeller said.

More feedback

Julie Rogers, who serves as public counsel, the state’s ombudsman, also testified in neutral. Her office today has oversight of the Offices of Inspectors General. She said those offices need access to information to provide legislative oversight.

At several points in the hearing, State Sens. Terrell McKinney of Omaha and Ben Hansen of Blair, the chair of the Executive Board, questioned whether the judicial branch would accept any level of legislative oversight. McKinney worried specifically about prisons and parole.

McKinney asked whether the changes in LB 298 might weaken legislative oversight of a state prison system that has been crowded and does not have a history of running well without prodding. Hilgers told him he thought senators would retain that power.

Hansen tried to find the line for where the court system would accept some oversight from the legislative branch that has to write the checks from taxpayers when the probation system gets successfully sued by someone who was wronged.

Steel at one point said the courts would not welcome legislative oversight into its matters any more than the Legislature would like if the courts placed a judge in every legislative hearing or vote to verify whether a bill was constitutional.

State Sen. Eliot Bostar of Lincoln, who jousted with Steel about the separation of powers, seemed to be prepping for a pending fight about LB 684, his bill that would pull juvenile probation from the judicial branch and put it into the executive branch.

“With your concerns over overreach, particularly into the judicial branch, isn’t this why the judicial branch shouldn’t have administrative functions?” Bostar asked.

At one point, Steel responded, “We’ve always had juvenile probation.”

Next steps

Arch asked the committee to wait to vote on whether to advance the bill to the legislative floor so lawmakers could address some of the concerns voiced Tuesday. Six letters were submitted in support of LB 298, with none opposed and one neutral.

“This bill is to create a structure of oversight with strong legislative control,” Arch said.

The committee took no immediate action on the bill. 

Also on Tuesday, State Sen. Machaela Cavanaugh of Omaha discussed LB 579, which would prohibit state agencies from charging for public records requests from state senators and their offices. 

The Pillen administration testified against the bill, arguing that they would not want to make filing a higher volume of requests cheaper. They also argued it might violate the separation of powers clause of the Nebraska Constitution.