Without the power to prosecute, OPA can only blow the whistle in hopes of shaming the delinquent into doing things right
By Jasmine Stole Weiss
The Office the Public Accountability combs the government of Guam bank accounts, examines regulations and scrutinizes documents. It finds aberrations: fraud, unethical practices, violations of the law. Its audit reports detail how the taxpayer money is misused and troves of taxes go uncollected. It provides recommendations.
The audit-wielding OPA is but one tool in the government’s accountability operation.
Besides pointing out questionable costs, violations and concerns, auditors also advise agencies on how to fix the issues. “Unfortunately,” Public Auditor Benjamin Cruz said, “we don’t have the authority to mandate that they follow the recommendations.”
Cruz was elected in 2018 and re-elected in 2020 to the public auditor seat, after serving for many years as a lawmaker and a chief justice.
He is looking at ways to outfit the OPA with more teeth, more independence and more permanence.
Cruz cited the Northern Mariana Islands as a model for OPA’s desired structure. The CNMI Constitution guarantees an annual set budget for its public auditor. Such a setup, Cruz said, protects the independence of the CNMI public auditor.
In essence, a constitutional guarantee would mean there is no need for direct legislative or executive branch intervention of the CNMI public auditor budget.
Cruz is considering pushing for the same budget guarantee in the Organic Act of Guam. “In some jurisdictions, the OPA is established by Constitution, so it can’t be struck by legislators,” Cruz said.
On Guam, the OPA is at the mercy of the legislature. “It could be very easily just, ‘The Office of Public Accountability is hereby repealed,’” the former senator said.
For now, the OPA is still an established department and auditors issue recommendations to improve government operations. There is, however, inconsistent effort to implement those recommendations.
“Departments implement some of (the recommendations), but we still find some that haven’t been implemented. So, six months after the issuance, we’ll send a follow-up letter,” Cruz said.
In other jurisdictions, public auditors have prosecutorial power. Guam’s OPA is not afforded such an option. “We don’t have the authority to do anything about it, except point it out. All we can do is just publish it and hope that shame will do it.”
At the beginning of the Leon Guerrero-Tenorio administration, a staffer was tasked to review OPA’s audits and recommendations. The administration started following up on the recommendations, but when the staffer moved to a different agency, the effort came to a halt, Cruz said. No one else was assigned to succeed that staffer.
If the OPA makes referrals to the Office of the Attorney General, it is up to the AG’s office to decide to pursue it, if at all. “We’ve had instances in the past where we found a fairly egregious behavior. We reported it and sent it to the AG. Rather than prosecute criminally, they decided to work it out civilly so the person had to pay some money and do some restitution to straighten things out,” Cruz said.
The OPA has also worked with the Guam Legislature to resolve issues their audits found through legislation. “Sometimes they do. Sometimes they don’t,” Cruz said.
A recent example of senators introducing a bill in line with the OPA recommendations is Bill 152-36, which seeks to close some of the inactive special fund accounts the OPA identified years ago.
While the office has limitations, it also possesses valuable authority, particularly in procurement appeals. When taxpayer-funded government contracts are challenged, it’s the OPA that settles disputes.
As Cruz considers options to improve the OPA, the auditors continue their mission. In cases where he is connected to an issue or people being audited, Cruz is kept out of the auditing process to maintain objectivity.
“I didn’t even know what the stats were. I saw it the day it went on the website,” Cruz said. “They didn’t even allow me to see it in its final draft before it was released."
In 2020, the OPA conducted 25 financial audits, up from the 23 in 2019. They produced nine performance audits, which was the same amount as 2019 but one more than the eight performance audits done in 2018. Output increased in the past three years, according to the OPA’s citizencentric report.
While output increased, the staff size decreased. In the past two years, 10 employees left the office. Cruz attributed the attrition partly to higher salaries in other agencies. OPA has since been able to hire six more auditors.
All things considered, Cruz is proud of OPA’s accomplishments. “Pointing something out that could possibly bring us a lot of money, I like those audits,” he said. “For use tax, there’s this major problem that I’m hoping the administration addresses because we’re just losing so much tax. During the pandemic, it got even worse.”
OPA has more items on its laundry list such as following up on the tobacco tax enforcement, scanning the military contracts, and monitoring GovGuam agencies’ compliance with procedure laws.
“I’m really proud of the work the staff does, in getting opinions out and (solving) procurement appeals,” Cruz said.