State agencies' plan for legislature's new investigation powers: Ask a lawyer

State agencies have started reaching out to their employees to explain the expansive new investigatory powers the state legislature gave itself this year, and to make sure those employees know they can be charged with a crime if they fail to respond to legislative requests.

The new law also says employees can be fired if they don’t keep legislative inquiries a secret, which is one of the reasons Democratic lawmakers have strongly opposed the law. Some Democrats have complained that the Republican-backed change creates a secret police force lawmakers can use to turn executive branch employees into unwilling spies. Failing to comply with a legislative request is a misdemeanor under the new law.

Many of the dozen state agencies polled by WRAL News are telling rank-and-file employees to reach out to the agency’s in-house attorney if they get a request.

The new law says inquiries from the General Assembly’s Joint Legislative Commission on Governmental Operations “shall only be revealed by an agency employee to another agency employee to the extent that it is necessary to fulfill a request,” and legislative leadership indicated this week that it seems reasonable for employees to contact the office of their agency’s general counsel.

Gov. Roy Cooper’s administration and at least one executive branch office run by a Republican elected official — the Department of Labor — have given employees that guidance.

Lauren Horsch, spokeswoman for Senate Republican Leader Phil Berger, said if officials are “instructing agency staff to work with their legal representatives in good faith to comply with the request, that seems like an appropriate course of action.”

“However, it is not appropriate to collude with the governor’s advisors and legal team to get permission to respond,” Horsch said in a written statement.

Demi Dowdy, a spokeswoman for Speaker of the House Tim Moore, said that as long as state agencies work with the legislature and the law is followed, “we will let each agency determine the best method of complying with the law.”

Leadership for both the House and Senate Republican majorities have said they expanded the legislature’s oversight powers because the Cooper administration stonewalled some inquiries, and particularly a General Assembly review of the state’s slow recovery from hurricanes Matthew and Florence.

“We need to have the ability to demand and insist that that information be provided,” Speaker of the House Tim Moore said recently.

But the change represents a major power boost, empowering this legislative committee to demand documents and inspect facilities, including private buildings leased by companies that have state contracts.

The language wasn’t approved as a stand-alone bill. Moore and Berger rolled it into a 625-page budget bill, releasing the language to the public for the first time about 18 hours before the first vote on a $30 billion budget that had to be voted up or down in its entirety — no amendments allowed.

Cooper has blasted the change.

“With this hyperpartisan secret police provision, legislators have now threatened criminal peril to intimidate everyday state employees into participating in partisan show trials,” Jordan Monaghan, a spokesman for Cooper, said in an email Thursday.

Legislative Democrats were highly critical, too, saying the confidential process turns agency employees into spies. A few compared this new legislative police to the Gestapo, the secret political police force in Nazi Germany.

Republicans dismissed the comparison as hyperbole.

WRAL News reached out to a dozen state agencies, asking what they’ve told employees to do if they get a request from the Joint Legislative Commission on Governmental Operations, commonly called “Gov Ops.”

Five provided memos that went out to employees in recent weeks, telling them to inform only the agency’s in-house legal team if they get a request. Those five departments are:

• The Department of Transportation
• The Department of Administration
• The Department of Public Safety
• The Department of Health and Human Services
• The Department of Labor

Four of those departments are under Cooper’s administration. The Department of Labor is run by Commissioner Josh Dobson, a former North Carolina House member and a Republican elected statewide.

One Cooper administration agency, the Department of Commerce, has told employees to inform the agency’s general counsel as well as the employee’s supervisor so that they “can help you prepare an appropriate response.”

The Department of Adult Corrections, a Cooper administration agency, hasn’t yet told its employees how to handle requests and neither has the Department of Insurance, which is run by Republican Insurance Commissioner Mike Causey, spokespeople said. The Department of Information Technology, another Cooper administration agency, said it hasn't reached out to its employees, but that its position is employees who get a Gov Ops request should contact general counsel.

Attorney General Josh Stein, a Democrat elected statewide, hasn’t issued guidance to his employees or to other state agencies, his spokeswoman said.

The Department of Environmental Quality and the Secretary of State’s Office didn’t respond to a WRAL email seeking their policy.

Correction: This post has been updated to note that the Department of Information Technology has a position on this issue but says it has not communicated that issue to its employees.