An In-Depth Budget Review Of The Office Of The Utah Attorney General

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REPORT TO THEUTAH LEGISLATURENumber 2015-06An In-Depth Budget Review of theOffice of the Utah Attorney GeneralJune 2015Office of theLEGISLATIVE AUDITOR GENERALState of Utah

STATE OF UTAHOffice of the Legislative Auditor General315 HOUSE BUILDING PO BOX 145315 SALT LAKE CITY, UT 84114-5315(801) 538-1033 FAX (801) 538-1063Audit Subcommittee of the Legislative Management CommitteePresident Wayne L. Niederhauser, Co–Chair Speaker Gregory H. Hughes, Co–ChairSenator Gene Davis Representative Brian S. KingJOHN M. SCHAFF, CIAAUDITOR GENERALJune 23, 2015TO: THE UTAH STATE LEGISLATURETransmitted herewith is our report, A Performance Audit of the Office of theUtah Attorney General (Report #2015-06). A digest is found on the blue pageslocated at the front of the report. The objectives and scope of the audit areexplained in the Introduction.We will be happy to meet with appropriate legislative committees, individuallegislators, and other state officials to discuss any item contained in the report inorder to facilitate the implementation of the recommendations.Sincerely,John M. Schaff, CIAAuditor GeneralJMS/lm

Digest of an In-Depth Budget ReviewOf the Office of the Utah Attorney GeneralThe Utah Attorney General (AG) is the constitutionally mandated legal adviser to thestate. Our office was asked to conduct two audits of the Office of the Utah AttorneyGeneral (OAG). This audit addresses issues dealing with budgetary controls,appropriateness of spending, issues with compensation, and use of contract attorneys. Theother audit, titled A Performance Audit of the Office of the Utah Attorney General 2015-05,addresses improving performance management, increasing public transparency andaccountability, ethics processes, individual accountability, and office efficiency andeffectiveness. Controlling for settlement payments and litigation costs, the OAG’s budgethas increased 31 percent since 2007, from 42.8 million to 56.1 million. While theGeneral Fund is the primary funding source for the OAG (averaging about 52 percent), theoffice also receives dedicated credits revenue from other entities for legal services averagingabout 34 percent since fiscal year 2007. Other sources of revenue make up the other 14percent, primarily from non-lapsing balances, federal funds, restricted revenue, and transfersfrom multiple sources. OAG staff and management were cooperative throughout our auditwhich helped enable a thorough review. Many of the concerns addressed in this report arelong standing issues that precede the current AG.Chapter IIImproved Budgetary and AccountingControls Necessary for Legal ServicesThe OAG does not have adequate processes in place to contract, fund, and track legalservices to state agencies. More than 17 million of the OAG’s budget consists of stateagency payments (dedicated credits) for its legal services. Appropriating state agencypayments for legal services as dedicated credits in the OAG’s budget has been a longstanding practice, but is not consistent with statute and also reduces transparency during thebudgeting process. A complex system of legal services agreements has developed over timebetween the OAG and state agencies that lacks uniformity. This lack of uniformity inproviding legal services contributes to inconsistent tracking of legal services costs with littleor no legislative oversight of millions of dollars of incoming revenue. Implementinglegislative compensation increases is complicated with the current dedicated credits process,and certain federal revenue could be at risk. Because the OAG receives more than 17 million in legal services payments (dedicated credits) from state agencies per year, withabout 5.9 million from federal funds, we believe the Legislature should considerestablishing an Internal Service Fund (ISF). We also found reporting and oversight of otherfunds is needed.Office of the Utah Legislative Auditor General-i-

Chapter IIISpending of Building BlockAppropriations Generally Meets IntentBuilding block appropriations are spending items approved by the Legislature thatconstitute new money in an agency’s budget. In general, building block expenditures by theOAG appear consistent with their stated legislative purposes. We were able to validate 50 of53 building blocks received by the OAG since fiscal year 2010. However, we were not ableto verify spending for two building blocks because of insufficient accounting in the divisionoverseeing them. In addition, questions remain with another building block that willrequire follow-up from the Legislature to ensure adequate tracking. We also noted that,while two other building blocks were spent in accordance with their intended purposes,concerns exist that will require further legislative action to resolve. For example, the OAGhired full-time employees with a one-time appropriation intended to be spent over multipleyears. Finally, appropriations from a restricted account far exceed the account’s revenues,leaving the OAG in a position to subsidize the full-time attorneys hired with other funds.Chapter IVCompensation on Low End butTurnover Rates Are FavorableThe use of dedicated credits to partially cover salary increases for Utah’s AssistantAttorneys General (assistant AGs) is challenging because the dedicated credits must becollected from other state agencies receiving legal services. These state agencies must pay forthe increases out of their own budgets if able, and this process limits the OAG’s ability tocover all salary increases. As discussed in Chapter II of this report, the creation of anInternal Service Fund would help address this problem. Our review of compensation foundthat entry-level salaries for assistant AGs compare well on a national survey for publicattorneys, but assistant AG salaries fail to keep up over time. Our survey of local publicattorney salaries found that assistant AGs appear on the lower end of all years of servicecategories. However, assistant AG turnover rates compare favorably and retention ofattorneys is similar to the Salt Lake County District Attorney’s Office. While turnover ratesdo not appear high in comparison to other offices we reviewed, we recommend the officemonitor turnover rates and document reasons for employees leaving in the future to helpguide management decisions.- ii -An In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

Chapter VIsolated Events IncreasedAttorney Contracting CostsThe contract attorneys line item in the OAG’s budget has been a concern to theLegislature because of the large increases in the past few years. Much of the increase is dueto the Legislature’s use of this line item to appropriate and account for the state’s settlementcosts, which are largely pass-through funds not used in the OAG’s operating budget, butthis appropriations issue was recently addressed. While we did not identify concerns withthe use of contract attorneys, we do recommend a more transparent accounting ofsettlement costs by including them in the other charges/pass-through expenditure categoryinstead of current expenses. After removing settlement costs from the contract attorneys lineitem, highway projects make up the bulk of the activities in the line item. The UtahDepartment of Transportation (UDOT) reimburses the OAG for these costs and themajority of attorney contracting is used for condemnation cases that occur with largehighway projects. Two recent Utah Supreme Court cases may further increase thesecondemnation costs in the future.Other reviewed states use attorney contracting for similar reasons, but also contract outservices that Utah’s OAG provides in-house. OAG management uses attorney contractingfor large temporary caseloads and specialty cases when no in-house expertise exists. Itappears that the OAG has adequate controls in place to monitor the quality of contractedattorney services.Office of the Utah Legislative Auditor General- iii -

This Page Left Blank Intentionally- iv -An In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

REPORT TO THEUTAH LEGISLATUREReport No. 2015-06An In-Depth Budget Review of theOffice of the Utah Attorney GeneralJune 2015Audit Performed By:Audit ManagerDarin UnderwoodAudit SupervisorBrian DeanAudit StaffAugust LehmanZackery KingMatthew Harvey

Table of ContentsChapter I Introduction . 1Attorney General Primary Funding Source Is the General Fund . 1OAG Expenditures Show Modest Growth . 4OAG Administers Several Off-Budget Funds . 6Audit Scope and Objectives . 7Chapter II Improved Budgetary and Accounting Controls Necessary for Legal Services . 9Long Standing Use of Dedicated Credits Is Not Consistent With Statute and LacksTransparency . 9Budgeting and Accounting for Legal Services Needs Improvement . 12Additional Reporting and Oversight Of Other Funds Needed. 17Recommendations. 19Chapter III Spending of Building Block Appropriations Generally Meets Intent. 21Building Block Expenditures Appear Consistent with Stated Purpose . 22Recommendations. 25Chapter IV Compensation on Low End but Turnover Rates Are Favorable . 27Dedicated Credits Limit the OAG’s Ability To Cover All Salary Increases . 27Attorney Compensation Comparatively Low. 28Assistant AG Turnover and Retention Rates Are Reasonable . 31Recommendation . 34Chapter V Isolated Events Increased Attorney Contracting Costs . 35Settlement Costs and Increased Workload Inflate Contract Attorneys Line Item . 35Other States Use Contract Attorneys for Similar Reasons . 39OAG Monitors Attorney Contracting Needs and Quality of Services . 40Recommendations. 40

Appendices . 41Appendix A Figure 1.2 Detail. 45Appendix B Figure 1.3 Detail . 49Appendix C Five-Year Roll-Up of OAG Legislative Appropriations . 53Appendix D Other Funds Detail . 63Agency Response . 69

Chapter IIntroductionThe Utah Attorney General (AG) is the constitutionally mandatedlegal adviser to the state. Our office was asked to conduct two auditsof the Office of the Utah Attorney General (OAG). This auditaddresses issues dealing with budgetary controls, appropriateness ofspending, issues with compensation, and use of contract attorneys.The other audit, titled A Performance Audit of the Office of the UtahAttorney General, 2015-05, addresses improving performancemanagement, increasing public transparency and accountability, ethicsprocesses, individual accountability, and office efficiency andeffectiveness. The OAG staff and management were cooperativethroughout our audit which helped enable a thorough review. Manyof the concerns addressed in this report are long standing issues thatprecede the current AG. This chapter discusses primarily the OAG’ssources of funding and expenditures.This audit addressesissues dealing withbudgetary controls,appropriateness ofspending, issues withcompensation, and useof contract attorneys.Attorney General Primary FundingSource Is the General FundThe primary funding source for the OAG is the General Fund.Dedicated credits account for about one-third of funding for theOAG. The remaining revenue sources for the OAG are federal funds,restricted revenues, and transfers. Controlling for settlement paymentsand litigation costs, the OAG’s budget has increased about 31 percentsince 2007, from 42.8 million to 56.1 million, as illustrated inFigure 1.1.1 Settlement payments and litigation costs are controlledfor because these revenues are primarily pass-through funds orreimbursements. As shown in Figure 1.1, the large increases in thetotal budget beginning in fiscal year 2011 result from multiplesettlement payments each fiscal year.1Settlement payments and litigation costs are not typically part of the OAG’soperating budget. Instead, they are funds appropriated by the Legislature to theOAG that; (1) get passed through to whomever the recipient of the settlementpayment is, or (2) reimburse the OAG for its costs of defending the state orlitigating on its behalf. Because these appropriations are essentially pass-throughfunds or reimbursements, we have excluded them from our analysis of the OAG’sbudget throughout this review.Office of the Utah Legislative Auditor General-1-

Typically, the state pays court-ordered settlement payments and/orlitigation costs each fiscal year. However, because of large paymentsfor the Pelt Settlement, these appropriations were abnormally largefrom fiscal years 2011 to 2014. The average settlement payment fromfiscal years 2007 to 2014 (including Pelt Settlement payments), wasabout 5 million, with a range between 322,600 and about 14.2 million. Excluding Pelt Settlement payments, the average wasabout 698,200, with a range between 0 and about 3.7 million.Settlement payments and litigation costs are discussed in more detailin Chapter V of this report.Figure 1.1 Attorney General Total Budget. Total budget includessettlement payments and litigation costs as well as the AttorneyGeneral’s operating budget. The OAG’s operating budget minussettlement payments and litigation costs is represented with thedotted 0201120122013201443.942.830.020.010.00.02007Total BudgetTotal Budget w/o Settlement PaymentsSource: Legislative Fiscal Analyst and Appropriations Reports from General Sessions 2006 - 2014About 52 percent ofOAG funding comesfrom the General Fundand about 34 percentcomes from dedicatedcredits.-2-Figure 1.2 charts the main sources of revenue in the OAG’soperating budget for fiscal years 2007 through 2014. Of availablefunding shown in Figure 1.2, General Fund appropriations averagedabout 52 percent of the OAG’s total revenue sources with dedicatedcredits revenue averaging about 34 percent since fiscal year 2007.Other sources of revenue include non-lapsing balances averaging5 percent, federal funds averaging 4 percent, restricted revenue frommultiple sources averaging 3 percent, and transfers from multipleAn In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

sources averaging 2 percent. Additional detail on the make-up of theserevenue sources is included in Appendix A of this report.Figure 1.2 OAG Funding Sources for Operating Budget. Thisfigure shows sources of funding but does not include settlementpayments or litigation FF2009DC2010RR20112012Transfers20132014Beg. NLBGF – General Fund; FF – Federal Funds; DC – Dedicated Credits; RR – Restricted Revenue; Transfers –Transfers; Beg. NLB – Beginning Nonlapsing BalancesSource: Legislative Fiscal AnalystAdjusting for settlement payments and litigation costs, the OAG’sGeneral Fund appropriations grew an average of 5 percent from fiscalyears 2007 through 2014; the range of growth was between about-8.0 percent and 19 percent. The large jump in fiscal year 2008 wascaused by about 4.5 million and 1.9 million in ongoing and onetime appropriations, respectively. One funding item in question fromfiscal year 2008 is a 322,600 General Fund ongoing appropriationfor litigation of the Pelt case. The litigation of this case is now overand the settlement payments have been made, yet it appears theongoing appropriation is still being made. OAG staff indicated thatthey do not know how the 322,600 is being spent, but also statedthat the cuts the OAG received in subsequent years were far in excessof this appropriation.Adjusting forsettlement paymentsand litigation costs,the OAG’s GeneralFund appropriationsgrew an average of5 percent from fiscalyears 2007 through2014.As exhibited in Figure 1.2, dedicated credits revenue is a majorsource of funding for OAG operations, averaging about 17.3 millionper year in fiscal years 2007 through 2014. On average, about94 percent of this dedicated credits revenue was realized from billingstate agencies for legal/professional services, which equaled about oneOffice of the Utah Legislative Auditor General-3-

third of the OAG’s overall revenue each year. We discuss neededcontrols over this revenue source in more detail in Chapter II of thisreport.OAG ExpendituresShow Modest GrowthWhile the OAG’saverage annual fulltimeequivalent employees(FTE) total hasincreased by about 8percent since 2007,salaries and wageshave increased byabout 24 percent forthe same period.-4-OAG expenditures have shown modest growth over the years.Personnel costs make up about 85 percent of all annual expendituresfor the office. We found that, while the OAG’s average annual fulltimeequivalent employees (FTE) total has increased by about 8 percentsince 2007, salaries and wages have increased by about 24 percent forthe same period.Adjusting for Settlement Payments and Litigation CostsReveals Modest Growth in OAG ExpendituresFigure 1.3 provides a historical trend of OAG expenditures byspending category, from fiscal years 2007 through 2014. Historically,the OAG has accounted for settlement payments and litigation costs inthe current expense category. To show the OAG’s operating budget,Figure 1.3 does not include settlement payments or litigation costs,which would increase current expenses by about 5 million on averagefrom fiscal years 2007 through 2014, the range being 322,600 andabout 14.2 million.An In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

Figure 1.3 OAG Expenditures by Category. Personnel servicesmakes up the majority of annual expenditures by the OAG. Thischart does not include settlement payments or litigation .02007Pers. Services2008Travel20092010Current Exp.20112012Capital Exp.20132014Other‐Pass ThruSource: Division of Finance – Data warehouse. See Appendix B for further explanation of expenditurecategories.Adjusting for settlement payments and litigation costs, currentexpenses for the OAG increased by an average of 9 percent per year,with a range of -28 percent and 75 percent. Although spending onattorneys fees or outside counsel fluctuates from year to year,payments in this spending category are a major contributor to thegrowth in current expenses each fiscal year. For example, in fiscal year2008, the increase in this spending category was almost 1 millionfrom fiscal year 2007. Additionally, from fiscal year 2010 to fiscal year2014 the spending in current expenses for attorney fees increased fromabout 435,700 to about 2.1 million. Other spending categories thatshow a trend of increases are payments for professional and technicalservices and operating supplies and maintenance repairs for buildings.Personnel Costs Make Up About85 Percent of Annual ExpendituresFigure 1.4 focuses on the personnel services element of the OAG’sexpenditures. It exhibits the top five contributing costs to the OAG’spersonnel expenditures and groups the rest into the “other” category.The figure also charts the average FTE for each fiscal year; the averageFTE is shown to reflect the fact that employees come and go, makingthe total FTE count a fluid number throughout the fiscal year.Office of the Utah Legislative Auditor GeneralPersonnel costs makeup about 85 percent ofannual expendituresfor the OAG.-5-

Figure 1.4 Personnel Services Breakdown Compared toAverage FTEs. The personnel services breakdown is shown forfiscal years 2007 through 2014. The FTE number represents theaverage number of FTEs for the entire fiscal 2013201439630.020.010.00.0200720082009Regular Salaries & WagesHealth, Dental, Disability InsuranceFICA/MedicareAverage FTE2012State RetirementLeave PaidOtherSource: Data WarehouseThe average annual FTE total for the OAG increased from 396 infiscal year 2007 to 427 in fiscal year 2014, representing a 7.8 percentincrease. Salaries and wages have increased by about 4.9 million inthat same period, representing about a 24 percent increase.Compensation for the OAG is discussed in more detail in Chapter IVof this report.OAG Administers SeveralOff-Budget FundsThe OAG alsoadministers theAttorney GeneralLitigation Fund andthree off budget funds.-6-Off-budget funds are those funds administered by an agency thatdo not receive legislative oversight through the normal budgetingprocess. Typically, these funds are special revenue funds, trust funds,agency funds, or other fund types that do not require a legislativeappropriation for the agency to spend their balances. However, thesefunds are generally set up for specific purposes and can have otheroversight mechanisms in place; they may be created through statuteand may even be set up administratively by the Division of Finance incooperation with an agency. Each fund is unique in purpose andAn In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

function, and, unless required by statute, reporting on each fund isusually done only upon request by the Legislature.The OAG administers the Attorney General Litigation Fund andthree off-budget funds. As an expendable special revenue fund, theAttorney General Litigation Fund fits the description of an off-budgetfund, however, the OAG receives a direct appropriation from it, whichis not typical for an off-budget fund. The Attorney General ConsumerPrograms Fund, Attorney General Crime & Violence PreventionFund, and the Attorney General Financial Crimes Fund are the threeoff-budget funds administered by the OAG. In addition to theseoff-budget funds, we have included detail about the General FundRestricted - Abortion Litigation Account in this report. Statute limitsthe expenditure of its funds, until fiscal year 2015, to AG costs for thedefense of specific laws that might be passed. Because of this and otherlanguage in statute regarding the account, we have included detailabout it in this report. All these funds are discussed in greater detail inChapter II and Appendix D.Audit Scope and ObjectivesOur office conducted a performance audit and an in-depth budgetreview of the Attorney General’s Office. The results of theperformance audit are found in a separate report (A Performance Auditof the Office of the Utah Attorney General 2015-05). That reportaddressed improving performance management and accountability,ethics processes, individual accountability, and office efficiency andeffectiveness, and increasing public transparency.This report addresses the in-depth budget review of the Office ofthe Attorney General. Chapter I addresses the services andfunding/expenditure levels of the Office of the Attorney General. Theremaining chapters of this report address the following issues: Chapter II – Increased accounting and budgetary controlsnecessary for legal servicesChapter III – Spending of building block appropriationsappears to meet intended purposesChapter IV – Compensation on low end, but turnover rates arefavorableChapter V – Use of contract attorneysOffice of the Utah Legislative Auditor General-7-

This Page Left Blank Intentionally-8-An In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

Chapter IIImproved Budgetary and AccountingControls Necessary for Legal ServicesThe Office of the Utah Attorney General (OAG) does not haveadequate processes in place to contract, fund, and track legal servicesto state agencies. More than 17 million of the OAG’s budget consistsof state agency payments (dedicated credits) for its legal services.Appropriating state agency payments for legal services as dedicatedcredits in the OAG’s budget has been a long standing practice, but isnot consistent with statute and also reduces transparency during thebudgeting process. A complex system of legal services agreements hasdeveloped over time between the OAG and state agencies that lacksuniformity. This lack of uniformity in providing legal servicescontributes to inconsistent tracking of legal services costs with little orno legislative oversight for millions of dollars of revenue.Implementing legislative compensation increases is complicated withthe current dedicated credits approach and certain federal revenuecould be at risk. Because the OAG receives more than 17 million inlegal services payments (dedicated credits) from state agencies peryear, with about 5.9 million from federal funds; we believe theLegislature should consider establishing an Internal Service Fund(ISF). We also found reporting and oversight of other funds isneeded.The OAG does nothave adequateprocesses in place tocontract, fund, andtrack legal services tostate agencies.Improved budgetaryand accountingcontrols wouldaddress the issuesidentified in thischapter.Long Standing Use of Dedicated Credits Is NotConsistent With Statute and Lacks TransparencyThe OAG categorizes its legal services to state agencies asdedicated credits. This use of dedicated credits has been a longstanding practice that was inherited by the current AG, but this usagedoes not fit the statutory description of a dedicated credits program.Additionally, this categorization is not consistent with statute. Instead,the revenue should be accounted and budgeted for as transfers. UtahCode 63J-2-102 defines dedicated credits as " revenues fromcollections by an agency that are deposited directly into an account forexpenditure on a separate line item and program.” Applying thisdefinition, the collection of fees, fines, and/or other revenuegenerating transactions outside of General Fund appropriations can beOffice of the Utah Legislative Auditor GeneralThe OAG’s dedicatedcredits are largelycomprised of transfersreceived from stateagencies for thelegal/professionalservices it provides.Dedicated creditsmake up about a thirdof the OAG’s budgetand its use is notconsistent with statute.-9-

categorized as dedicated credits revenue in budgeting. However, theOAG’s “dedicated credits” are largely comprised of transfers receivedfrom state agencies for the legal/professional services it provides. Thus,the OAG’s “dedicated credits” are not new revenues coming into statecoffers, but consist largely of General Fund, restricted revenue, and/orfederal fund appropriations to state agencies that are being transferredto the OAG.Use of Dedicated CreditsIs Not Consistent With StatuteWhile statute allows the OAG to bill agencies for legal services,defining state agency payments to the OAG for legal/professionalservices as dedicated credits is expressly forbidden by statute. UtahCode 63J-2-102 states:Appropriating legalservices as dedicatedcredits is expresslyforbidden by statute.Dedicated credits does not mean:(i) federal revenues and the related pass through or therelated state match paid by one agency to another;(ii) revenues that are not deposited in governmentalfunds;(iii) revenues from any contracts; and(iv) revenues received by the Attorney General's Officefrom billings for professional services.Appropriating state agency payments for legal services as dedicatedcredits does not only create these statutory issues in the OAG’sbudget, but lack of transparency is a challenge with the currentprocess.Use of DedicatedCredits Limits TransparencyDedicated creditsbudgeting rules createan environment wherethe OAG can addadditional attorneys tomeet agency demandsand then ask forpermanent fundingafter the fact.- 10 -The OAG’s use of dedicated credits also limits transparency. Forexample, the Legislature is not privy to the negotiations between theOAG and the agencies for additional legal services but is asked toapprove them after the fact. Additionally, a hire-first, ask-laterapproach may be enabled in the application of the 125 percent rule fordedicated credits revenue. The 125 percent rule allows an agency tospend up to 25 percent more in dedicated credits revenue than it isappropriated from the Legislature.An In-Depth Budget Review of the Office of the Utah Attorney General (June 2015)

While statute does exclude hiring permanent employees “ unlessapproved by the Legislature ” in the application of this rule, thelanguage is vague enough that it could open the door for the OAG toadd attorneys without legislative approval, then request funding afterthe fact. This situation took place in fiscal year 2013. In need ofadditional legal services, the Department of Natural Resources (DNR)paid for an attorney with one-time money from its own budgetbecause the OAG did not have the resources available. Thisarrangement was made without legislati

Office of the Utah Legislative Auditor General - 1 - Chapter I Introduction The Utah Attorney General (AG) is the constitutionally mandated legal adviser to the state. Our office was asked to conduct two audits of the Office of the Utah Attorney General (OAG). This audit addresses issues dealing with budgetary controls, appropriateness of

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