Accountability and Transparency
Article V of The Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts in the Massachusetts Constitution states the following in part:
All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.39
On December 6, 1979, the Comptroller General of the United States, in the keynote address during the Annual Conference of National Capital Area Chapter / American Society for Public Administration, discussed accountability in government, stating the following:
Accountability requires a number of basic elements: First, the transmission of information regarding the actions and decisions of the person or organization being held accountable. Second, someone to receive the information who will examine it and take necessary actions. Third, a means by which the information can be used to improve performance, correct deficiencies or reward superior service. We have a responsibility to communicate information to the public, to open lines of communication between the Government and its citizens and keep them open. And, we must guard against developing our own dialect that stultifies communication and against creating a mentality that mechanically acts to withhold information.40
In other words, accountability requires the open and effective communication of information, i.e., transparency, where the burden of responsibility is on the state to disclose, not on its citizens to obtain, the information necessary, in a timely manner, and in such a way as to allow the citizens to hold their elected officials accountable.41
As stated in the American Library Association’s “Key Principles of Government Information,”
An informed citizenry is a prerequisite to maintaining the social contract between the established government and those governed by it. The people who constitute nations, states, or localities require unimpeded access to information to continually assess and evaluate their governments. Government must accept the responsibility to provide to its citizens unrestricted access to public information on government activities. This responsibility includes providing information regardless of geographic location or mobility of those who require it. Public information must be made available to the public without impediment through deliberate policies, charging fees which intentionally or unintentionally limit access by those unable to pay, or by limiting access through the use of format(s) which are not equally accessible to all citizens.42
Given these overarching principles of government accountability and transparency, and in accordance with Section 12 of Chapter 11 of the Massachusetts General Laws, the Office of the State Auditor (OSA) has conducted a performance audit of certain activities of the Massachusetts General Court (General Court; Legislature) for the period January 1, 2021 through December 31, 2022. The objectives of this performance audit were to determine the following: (1) whether and to what extent the two chambers of the Massachusetts General Court, the Senate and the House of Representatives (House), are ensuring that their respective chambers’ annual financial audits are completed, filed with required recipients, and made available to the public in accordance with their respective chambers’ own rules; (2) how and to what extent the funds of the Balance Forward line item listed in Senate and House financial audits are determined and tracked for fiscal year–end reporting; (3) how and to what extent the Massachusetts General Court is communicating information regarding pending and enacted legislation to the public; (4) how and to what extent the Massachusetts General Court is ensuring an equitable mode of making laws in accordance with the Preamble of the Massachusetts Constitution; (5) how and to what extent bills co-sponsored by a majority of the members of the Senate and/or House (member majority bills) are being considered by the Massachusetts General Court; (6) whether and to what extent policies and procedures are being equitably applied to all members and staff; (7) whether and to what extent legislative services are being equitably provided to all members and staff by a legislative services bureau or equivalent; and (8) whether and to what extent the Senate and House are complying with their respective chambers’ own rules regarding nondisclosure, non-disparagement, or other similar clauses in agreements or contracts.
We conducted this performance audit in accordance with generally accepted government auditing standards (GAGAS), except for Paragraphs 8.39, 8.90, and 9.50, due to the auditee’s refusal to participate in the audit and provide the necessary data.
Consistent with GAGAS, we have noted this inability to obtain sufficient, appropriate evidence as part of several scope impairments.
In this performance audit, we made determinations regarding the following: objective (1) whether and to what extent the two chambers of the Massachusetts General Court, the Senate and the House, are ensuring that their respective chambers’ annual financial audits are completed, filed with required recipients, and made available to the public in accordance with their respective chambers’ own rules; objective (3) how and to what extent the Massachusetts General Court is communicating information regarding pending and enacted legislation to the public; and objective (7) whether and to what extent legislative services are being equitably provided to all members and staff by a legislative services bureau or equivalent.
Due to the auditee’s refusal to participate in the performance audit, we could not obtain the information necessary to draw conclusions about the following: objective (2) how and to what extent the funds of the Balance Forward line item listed in Senate and House financial audits are determined and tracked for fiscal year–end reporting; objective (4) how and to what extent the Massachusetts General Court is ensuring an equitable mode of making laws in accordance with the Preamble of the Massachusetts Constitution; objective (5) how and to what extent member majority bills are being considered by the Massachusetts General Court; objective (6) whether and to what extent policies and procedures are being equitably applied to all members and staff; and objective (8) whether and to what extent the Senate and House are complying with their respective chambers’ own rules regarding nondisclosure, non-disparagement, or other similar clauses in agreements or contracts. See the “Scope Impairments” subsection of this report for information on the lack of audit evidence that prevented us from addressing objectives 2, 4, 5, 6, and 8 and developing findings and recommendations on these objectives.
Below is a list of the performance audit objectives, stating each question we intended the audit to answer, the conclusion reached regarding each objective, and where each objective is discussed in this report.
| Objective | Conclusion |
|---|---|
| See Finding 1 |
| See Scope Impairments |
| See Finding 2 |
| See Scope Impairments |
| See Scope Impairments |
| See Scope Impairments |
| See Finding 3 |
| See Scope Impairments |
Annual Financial Audits
Senate Rule 13C and House Rule 85A provide for an annual fiscal year audit of the Senate and House financial accounts, respectively.43 To determine whether and to what extent the Senate and House are ensuring that their respective chambers’ annual financial audits are completed, filed with required recipients, and made available to the public in accordance with their respective chambers’ own rules, on July 21, 2023 we requested the Senate and House financial audits for fiscal years 2021 and 2022. In response to our request, the Senate and House refused to provide this information, and we were also informed that the financial audits for fiscal years 2021 and 2022 had not been completed. As cited in the “Post-Audit Action” subsection of this report, the Senate financial audit for fiscal year 2021 has since been completed and publicly posted on the Massachusetts General Court website. (See Finding 1.)
Pending and Enacted Legislation
To determine how and to what extent the Massachusetts General Court is communicating information regarding pending and enacted legislation to the public, we reviewed the Massachusetts General Court website to assess the extent of available information regarding the legislative process, and pending and enacted legislation, as well as the ease of website navigation. We then compared these elements to those of a sample of the legislative websites of 5 other states—Kentucky, Pennsylvania, Virginia, Connecticut, and Oregon. (References to the sample states in this report refer to these 5 states. See Appendix B.) We selected the states for our sample due to various factors, including, but not limited to the following: (1) Kentucky, Pennsylvania, and Virginia were selected as they, like Massachusetts, were originally established as commonwealths;44 (2) Connecticut was selected as it was recognized as a leader in legislative transparency and is geographically linked to Massachusetts within New England;45 and (3) Oregon was selected as it has been improving its transparency and information accessibility,46 providing a reasonable understanding of how changes may be enacted by the Massachusetts General Court to increase transparency and information accessibility for Massachusetts residents. (See Finding 2.)
Legislative Services Bureau
Legislative services bureaus are generally nonpartisan divisions or agencies, established by state legislatures, that offer a variety of services, such as bill drafting, research, fiscal analysis, publications, information technology, and legal services, to legislators and legislative committees.47 To determine whether and to what extent legislative services are being equitably provided to all members and staff by a legislative services bureau or equivalent, we reviewed publicly available information on the website regarding the legislative services bureaus or equivalents of the sample states. We then compared that with publicly available information regarding the current and historical methods for providing legislative services by the Massachusetts General Court to its members. (See Finding 3.)
Scope Impairments
In response to OSA’s engagement letter, which indicated our intent to conduct a performance audit, the President of the Senate (see Appendix E) and the Speaker of the House (see Appendix E) stated that the Senate and the House, respectively, would not participate in the audit. The President and the Speaker contend that the audit would exceed the authority of OSA under Section 12 of Chapter 11 of the Massachusetts General Laws. They also argue that the audit would violate the separation of powers principles enunciated in Article XXX of the Declaration of Rights of the Massachusetts Constitution. We disagree.
First, there is significant historical precedent of OSA auditing the Legislature. We have produced over one hundred past audits (see Appendix E) of the Legislature conducted by this office, dating back to its inception in 1849.
Second, Section 12 of Chapter 11 of the General Laws provides that OSA has broad authority to “audit the accounts, programs, activities and functions directly related to the aforementioned accounts of all departments, offices, commissions, institutions and activities of the commonwealth.” The Massachusetts Constitution,48 statutes, and opinions of the Supreme Judicial Court (see Appendix E) all strongly point to the Legislature’s inclusion within the meaning of “department.” (See OSA’s letter to the Commonwealth’s Attorney General’s Office in Appendix E.) Had the Legislature intended to exclude itself from Section 12 of Chapter 11 of the General Laws, it could have done so by expressly exempting itself, as it has done with other laws.49
Third, the Legislature’s separation of powers concern reveals a fundamental misunderstanding of the work of OSA and the separation of powers doctrine. The separation of powers doctrine forbids departments from exercising the powers of the other departments; it does not preclude oversight by one department over another. In fact, the Massachusetts General Court has routinely conducted oversight over non-legislative departments of the Commonwealth including, but not limited to, Executive Department Agencies, through the Senate and House Committees on Post Audit and Oversight.50
OSA does not seek to exercise any of the legislative department’s powers. Rather, OSA is fulfilling the oversight duty of the State Auditor, an elected constitutional officer, to audit a department of the Commonwealth under Section 12 of Chapter 11 of the General Laws. This audit, conducted in accordance with GAGAS, performs oversight without asserting any authority to implement change, to compel the Massachusetts General Court to implement any of OSA’s recommendations, or to exercise any of the Massachusetts General Court’s powers.
Finally, there are strong public policy considerations for recognizing OSA’s authority to audit the Legislature, as Massachusetts has consistently been ranked as having one of the least transparent legislatures in the United States.51
In July 2023, our office presented the above arguments to the Attorney General’s Office, seeking its support in recognizing OSA’s authority to audit the Legislature and to litigate this matter in court, if necessary. Unfortunately, the Attorney General’s Office unilaterally concluded (see Appendix E) that OSA “does not currently have the legal authority to audit the Legislature without the Legislature’s consent,” and infringed upon OSA’s right to have this matter adjudicated in court.
Our additional requests for documents and interviews with Massachusetts General Court staff were denied. Due to the auditee’s refusal to participate in this audit, we were unable to obtain sufficient evidence to allow us to perform audit testing for the audit objectives specified below.
Balance Forward
In the absence of Senate and House financial audits for fiscal years 2021 and 2022, we reviewed the Senate (see Appendix E) and House (see Appendix E) financial audits for fiscal year 2020 (2020 financial audits) in order to gain an understanding of Senate and House financial audits. The 2020 financial audits include a line item titled Balance Forward, representing the unexpended balance of funds from the previous year. Pursuant to Section 13A of Chapter 29 of the General Laws, the unexpended balance of funds is transferred to the General Fund (the fund into which all revenue payable to the Commonwealth is paid, except as otherwise required by law52) if it is “determined that the balance . . . is not necessary for the purposes for which [the funds were] made available.” The 2020 financial audits state,
Available resources consist of the current year general appropriation and the unexpended balances of available funds brought forward from the prior fiscal year. Each year, the Senate and the House appropriate resources for the various bureaus, commissions, departments, boards, and institutions of state government, including the general appropriations for the [Senate or House, respectively]. As part of the budgetary process and as provided for in the Massachusetts General Laws, the unexpended balances of available resource are evaluated on the basis of planned programs or commitments that have not yet been completed and are either brought forward to be available for such programs and commitments or revert back to the general fund of the Commonwealth of Massachusetts.
To determine how and to what extent the funds of the Balance Forward line item listed in Senate and House financial audits are determined and tracked for fiscal year–end reporting, on August 8, 2023, we requested budget and spending data and information from the Senate and House, which would include documentation of Balance Forward line items, itemized amounts, and the purposes of any unexpended funds that were not closed-out at the end of the fiscal year. Since the Senate and House refused to participate in this audit, we were unable to obtain information regarding these matters.
In an effort to obtain information relevant to the audit objective, we reviewed Balance Forward information reported in the Massachusetts Management Accounting and Reporting System (MMARS)53 and compared posted amounts with information from the 2020 financial audits. The chart below lists amounts posted in MMARS for fiscal years 2019 through 2023.54
Balance Forward Amounts Posted in MMARS
| Fiscal Year | Senate | House | Joint | Total* |
|---|---|---|---|---|
| 2019 | $8,187,388 | $26,659,821 | $3,021,075 | $37,868,284 |
| 2020 | $10,943,021 | $25,604,136 | $6,534,265 | $43,081,422 |
| 2021 | $13,206,059 | $23,903,004 | $10,219,517 | $47,328,579 |
| 2022 | $15,957,995 | $21,601,779 | $13,551,671 | $51,111,445 |
| 2023 | $19,761,758 | $18,915,466 | $16,479,654 | $55,156,877 |
* Discrepancies in totals are due to rounding.
The chart below shows the Balance Forward line items listed in the respective Combining Schedule of Available Resources and Expenditures—Statutory Basis of the 2020 financial audits.
2020 Financial Audits
Combining Schedule of Available Resources and Expenditures—
Statutory Basis55
| Senate | House | Joint | |
|---|---|---|---|
| Funds Appropriated for Fiscal Year 2020 Budget | $23,656,511 | $42,277,603 | * |
| Balance Forward from Fiscal Year 2019 | $8,187,388 | $26,659,820 | * |
| Available Resources | $31,843,899 | $68,937,423 | * |
| Expenditures | $20,900,503 | $43,333,288 | * |
| Balance Forward to Fiscal Year 2021 | $10,943,396 | $25,604,135 | * |
* We were unable to obtain the Joint Legislative financial audits.
As illustrated in the two charts above, there is a small discrepancy between the Senate Balance Forward to Fiscal Year 2021 amount in the 2020 financial audit and the posted amount in MMARS.56 However, we were unable to determine the cause of the apparent discrepancy, the accuracy of any of the financial audit or MMARS Balance Forward amounts, or the purposes of the unexpended funds, since the Legislature refused to participate in the audit and did not provide any information or supporting documentation.
Equitable Mode of Making Laws
To determine how and to what extent the Massachusetts General Court is ensuring an equitable mode of making laws in accordance with the Preamble of the Massachusetts Constitution, we requested meetings with Massachusetts General Court members and personnel on various dates. On August 8, 2023, we requested information from the Senate and House regarding their respective processes and data for pending and enacted legislation. The Massachusetts General Court refused to participate in the audit and did not provide any information or supporting documentation.
In an effort to obtain information relevant to the audit objective, we reviewed publicly available information, including the Senate, House, and Joint Rules, and the role of committees in determining the proposed legislation that appears before the Massachusetts General Court for consideration. (See the Overview of Audited Entity section of this report and Other Matters 1.) However, since we were unable to obtain information regarding processes beyond the published Rules or review underlying data on legislative activity pertaining to the consideration of legislation, we could not determine whether and to what extent the Massachusetts General Court is ensuring an equitable mode of making laws.
Member Majority Bills
As a possible factor impacting an equitable mode of making laws, this audit included as a specific objective to determine how and to what extent member majority bills are being considered by the Massachusetts General Court. Legislation proposed by a member of the Massachusetts General Court may have a significant number of co-sponsors from either or both chambers.57 Although broad support by legislators may not necessarily reflect a consensus of public opinion, the number of co-sponsors on a bill is often perceived as being an indicator of underlying public support. Even a cursory review of any number of advocacy group websites demonstrates this common understanding; members of the public are encouraged to contact their legislators and request co-sponsorship of bills, particularly when concerning matters of significant public interest or potentially controversial issues.
To make a determination regarding this audit objective, we planned to select a sample of member majority bills and track the legislative activity of these bills through MassTrac58 and the Massachusetts General Court website. On August 8, 2023, we requested data for pending and enacted legislation. Due to the auditee’s refusal to participate in the performance audit, we were unable to obtain this information or draw any conclusions regarding consideration by the Massachusetts General Court of bills co-sponsored by a majority of the members.
Equity in Policies and Procedures
To determine whether and to what extent policies and procedures are being equitably applied to all members and staff, we planned to review internal policies and procedures of each chamber, as well as joint policies and procedures, in areas determined to be high risk, such as those regarding cybersecurity, sexual harassment, and ethics.59 We then planned to review documentation and interview a sample of Massachusetts General Court personnel regarding the application of these policies and procedures and to assess compliance with Senate Rules 10C (diversity and inclusion, implicit bias training), 11D (ethics training), and 11F (anti-harassment and bystander intervention training); House Rules 16B (ethics law training), 88–89 (harassment and retaliation prevention, equal opportunity), and 91–92 (human resources, employee engagement, professional development); and Joint Rule 1(3)(iii) (human resources training). On August 8, 2023, we requested meetings with Massachusetts General Court personnel and all written policies and procedures, including those regarding cybersecurity awareness training and sexual harassment training. Due to the Legislature’s refusal to participate in the performance audit, we were unable to obtain this information or draw any conclusions regarding the application of policies and procedures to members and staff.
Nondisclosure, Non-disparagement, or Other Similar Clauses
Senate Rule 11G and House Rule 100 govern the use of nondisclosure or non-disparagement clauses in agreements and contracts.
Senate Rule 11G provides the following:
The Senate shall not include or permit a nondisclosure, non-disparagement or other similar clause in an agreement or contract between the Senate and a member, officer or employee. The Senate shall not seek to enforce a nondisclosure, non-disparagement or other similar clause in an existing agreement or contract between the Senate and a member, officer or employee. This rule shall not be suspended. 2019.
House Rule 100 provides the following in relevant part:
(c) No member, officer or employee shall execute any agreement to settle any legal claim or potential legal claim of sexual harassment, or retaliation based on a legal claim or potential legal claim of sexual harassment, by any current or former member, officer or employee unless. . . .
3. the duration of any non-disclosure or non-disparagement provision of the agreement to settle the legal claim or potential legal claim is for a finite period of time as agreed to by the parties. . . .
(d) In the case of an agreement to settle any legal claim or potential legal claim of sexual harassment pursuant to this Rule by a member, the Speaker and Minority Leader shall appoint a Special Committee on Professional Conduct pursuant to [House] Rule 96 to determine if the member shall be required to personally reimburse the House for all or part of the settlement amount. Upon a determination by the Special Committee that the member shall be required to personally reimburse the House for all or part of the settlement amount, it shall determine the amount to be reimbursed and immediately notify the member of that amount.
(e) Upon request of [the person filing or eligible to file the legal claim or potential legal claim or a person legally authorized to represent that person], Counsel shall waive any non- disclosure or non-disparagement provision of any agreement executed prior to the effective date of this Rule by the House and any current or former member, officer or employee, to allow said current or former member, officer or employee to report or discuss a claim of sexual harassment or retaliation based on sexual harassment.
Added Mar. 15, 2018; Amended Jan. 30, 2019.
We note that House Rule 100(d) contemplates use of taxpayer monies to settle legal claims or potential legal claims of sexual harassment only.
To determine whether and to what extent the Senate and House are complying with their respective chambers’ own rules regarding nondisclosure, non-disparagement, or other similar clauses in agreements or contracts, on October 30, 2023, we requested the following:
- all employee settlement agreements and employment contracts executed from January 1, 2010 through December 31, 2022;60
- financial and demographic information related to these agreements; and
- internal policies and procedures relating to employee settlement agreements and employment contracts and the use of nondisclosure, non-disparagement, or other similar clauses.
Due to the Legislature’s refusal to participate in the performance audit, we were unable to obtain this information or draw any conclusions regarding Senate and House compliance with each chambers’ own rules regarding nondisclosure, non-disparagement, or other similar clauses in agreements or contracts, or regarding use of taxpayer monies to settle claims.61
| Date published: | October 21, 2024 |
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