Ken Hare In Depth: Audit suggests ASU made mockery of open records law

Published: Oct. 16, 2013 at 2:15 PM CDT
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MONTGOMERY, AL (WSFA) - The preliminaryforensic audit of Alabama State University was released by Gov. Robert Bentleythis week,  and the allegations itcontains should raise the hackles of every Alabama taxpayer.

Those allegationsinclude claims that current or former ASU trustees had conflicts of interestor  relatives who received ASU fundsimproperly. The audit also outlines what appears to be serious mishandling andwaste involving a contract between ASU and Medicaid.

And the auditclaims that ASU had numerous contracts with individuals and organizations inwhich the contracts specified "no deliverables." That isaccountant-speak for contracts that specify such things as what and whensomeone will be paid, but that does not specify the goods or services they willproduce in order to justify those payments. No agency that uses public fundsshould ever enter into a contract that does not specify"deliverables" in as exact and detailed a manner as possible.

But as serious asare the allegations this forensic audit spells out about financial dealings atASU, in the long run what the audit does not spell out may prove to be even agreater concern to the people of Alabama.

That's becausethe audit makes it clear that ASU's pattern of "stonewalling" -- touse the governor's word -- has worked to block the forensic audit from diggingnearly as deeply into public records as auditors would have liked.

The frustrationfelt by auditors comes through loud and clear to anyone who reads thepreliminary audit report.

Consider thesestatements sprinkled throughout the audit:

--  "FSS's(ForensicStrategic Solutions) assessment of ASU was thwarted and hampered by ASU from the beginning ..."

-- "FSS has not been provided with timely, transparent and reasonable accessto documents, individuals, and other information necessary to complete the assessment."

-- "ASU's actions have caused significant delay and have impeded the ability to get clear and transparent answers."

--"FSS has no confidence that the documentsproduced by ASU  arecomplete and reliable."

Theforensic auditors noted that although their audit was hampered by ASU from the start,"it "proved increasingly difficult" to get access to records after thelaw firm of former federal judge U.W. Clemon was hired by ASU. (Readers willrecall that I wrote in Mayabout Clemon being paid $375 an hour by ASU in apparent conflict with anexecutive order by the governor's office that state entities could pay outsideattorneys no more than $195 per hour except in extraordinary circumstances thatwere preapproved by the governor. The governor's office said then that no suchpreapproval had been sought.)

Itshould be noted that most, if not all, of the documents being sought by theforensic auditors hired by the governor appear to be public records --contracts, bills and checks and records directly related to those documents.Those are the kinds of public records to which any resident of Alabama shouldbe able to have access in a timely fashion.

Clemon issued a statement Monday inwhich he said that the procedures he used to handle the requests of theforensic auditors were designed "to minimize the impact that the investigation process had onthe day-to-day operations of ASU." The two current trustees named in theaudit also denied any wrongdoing.

But regardless of Clemon's claim, it appears that the endresult is that information that should be readily available to the public hasbeen either blocked completely, or redacted to the point that it is no longeruseful, or delayed for months.

In effect, ASU's tactics have made a mockery of thestate's public records law and of the right of Alabamians to have access toinformation about how their tax money is being spent and how their governmentis operating.

Gov. Bentley, who serves as president of the ASU board oftrustees (as well as boards of other state universities), has said he willcall  a meeting of the board to discussthe audit results. Bentley should forcefully ask that the board order the ASUadministration to immediately and fully comply with all records requests fromthe forensic auditors.

If such board action does not occur, the governor shoulddo what any citizen has the right to do -- file a freedom of informationlawsuit that asks the courts to order ASU to comply.

No entity of the state should be allowed to use publicmoney to hire a private law firm and then delegate to that private firm theauthority to block public access to public records.

If the governor does not use every tool available to himto keep ASU from  successfully"stonewalling" its way out of allowing a complete and thoroughaudit,  he should not be surprised to seeother state entities use similar tactics -- also financed with the public'smoney -- to avoid public  scrutiny.

Bentley very properly set this forensic audit in motionin an attempt to get to the bottom of allegations raised by the formerpresident of ASU. He should not allow the stalling tactics of ASU to work. Asgovernor, he has an obligation to defend the public's right to have  access to public records and to know how itsmoney is being spent.


Ken Hare was a longtime Alabama newspaper editorialwriter and editorial page editor who now writes a regular column for WSFA's website. Email him at

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