Performance Evaluation and Research Division Story Archives

Performance Reviews Of State Agencies, Regulatory Boards Getting New Direction

Several legislators spent their Sunday afternoon trying to understand what responsibility and power they have to direct performance reviews of state agencies by the Legislative Auditor’s office.

Legislators spent Sunday afternoon trying to understand what responsibility and authority they have to direct performance reviews of state agencies by the Legislative Auditor’s office. This was part of an interim meeting for the legislative Joint Standing Committee on Government Organization.

Reviews done by the Legislative Auditor on cabinet level departments and regulatory boards were previously on a cyclical and on annual schedule. When Senate Bill 687 becomes law on June 5, these reviews will instead be made at the discretion of the Speaker of the House, the Senate President and by recommendations from the Joint Standing Committee on Government Organization.

The committee’s Chief Counsel, Carl Fletcher, explained the new law. He listed 13 cabinet level departments with 104 agencies that oversee numerous boards and commissions along with 33 regulatory boards involved in the performance review process.

“This committee may recommend that specific agency reviews be made if information about an agency is desired,” Fletcher said, “This committee may also recommend that specific issues be included within the scope of an agency review.”

Fletcher said even though any scheduling is yet to be determined, there is a tentative schedule of departmental presentations set into place.

“The feeling was that we ought to have something in the absence of any input, so that the Legislative Auditor’s Office is not sitting through June or through the rest of the year waiting to determine what presentations might be made,” he said.

Fletcher said by code, there are some general required inquiries for any performance review.

“The general scope of those reviews is to look at what the agency does, and whether its duties and functions overlap with that of another entity, whether it be another agency or another body within a state government,” he said. “Whether there is even a continued need for the agency to exist, looking at the finances, and generally what it does overall in state government.”.

Del. Kayla Young, D-Kanawha, asked Fletcher if there was a guarantee in code that review reports would be made public.

”I’m not sure that it actually specifies that it would be done that way,” he said. “There have been some departmental presentations that have been done but have not been reported to the committee.”

Fletcher said standard procedure dictates reviews be presented to the Joint Government Organization Committee and a public website.

Looking at past reviews, Del. Jim Butler, R-Mason, asked Fletcher about following up on performance review recommendations that some boards, including Forestry and Medical Imaging Radiation Therapy, should be terminated. Fletcher responded that there was a follow up.

“Those recommendations were made, and a bill was drafted,” Fletcher said. “Ultimately, the legislature rejected it and did not terminate the board.”

Fletcher said for members of the Joint Standing Committee on Government Organization to make recommendations, they must go directly to the representatives of the Joint Committee on Government Finance.

“Right now, without a Legislative Auditor in place, it is being administratively run by the House and the Senate jointly, primarily through the Chiefs of Staff of both bodies,” he said.

Del. Adam Burkhammer, R-Lewis, asked Fletcher how, and in what form, the committee makes recommendations for a specific performance review, especially if there are issues involved. Fletcher said there’s’ no specific way defined in the new law.

“A motion could be made, or it could be prepared as documents,” Fletcher said, “Every member can go individually to the committee, or as a group and write a letter, do whatever.”

Burkhammer asked what the turnaround time was for a requested review. Fletcher said he had no specific answer for that.

“I’m sure it varies as to the size of the audit,” Fletcher said. “Generally, the ones I’ve seen, the post audit ones take several months, they can take longer. I’ve seen them take as long as a year, but I don’t know what the PERD (Performance and Research Division) ones are typically, at least a couple of months.”

Young asked John Sylvia, the PERD director, for specific information on recent reviews that were finalized and not presented. Sylvia said there were five of them:

the parking section under the real estate division
a fee structure review of the Board of Respiratory Care
a fee structure review on the Board of Dieticians
the Department of Education.
the Board of Examiners of Speech, Language and Pathology.

Sylvia focused on the delayed presentation of the review of the Department of Education.

“We did a measure of the learning loss that occurred during the pandemic,” Sylvia said. “It was a very extensive review, we looked at literally over 4.7 million rolls of data dealing with a variety of educational indicators to try to measure the extent to which there was learning loss within the educational system. That particular report was scheduled in November in Wheeling. I was told that it was taken off the agenda because the Superintendent of the Department of Education wanted to be present, but she had a conflict, so it was moved to December. But it was taken off in December. I don’t know why. And then it was not scheduled in January for the January interim.”

Auditors Urge Shutting West Virginia Funeral Examiners Board

West Virginia’s Board of Funeral Service Examiners fails to protect the public against unscrupulous operators and should be disbanded, according to the Legislature’s auditors.

They cited four cases in the past few years where they say the board delayed for many months suspending or revoking funeral directors’ licenses despite evidence they had taken customers’ advance payments that should have been held in trust.

Lawmakers should consider removing the board’s oversight function to another state agency, or else replace all board members and ensure that two have no working ties to the funeral industry, according to Performance Evaluation and Research Division Director John Sylvia.

“Consumers of funeral services and goods are often in a distraught emotional state when making these high-cost transactions,” Sylvia wrote. “The evidence demonstrates a relatively high risk of dishonest business practices by unprofessional funeral service providers.”

Board Executive Director Regina Anderson, in an audit response, said board attorneys have advised them not to take disciplinary actions without formal complaints and when there are criminal cases to wait for convictions before acting.

“We now find ourselves being chastised for failing to act according to the interpretation of your attorneys when our attorneys have advised to the contrary,” Anderson wrote. The board currently consists of three funeral directors and one citizen member, with three more due to be appointed, she wrote.

According to Anderson, the board also is never informed of embezzlement by funeral directors unless there are media reports. “We only find out by chance,” she wrote.

Auditors focused mainly on the case of Chad Harding, former president of the board, who kept his license after he was found in an August 2016 federal court judgment to have received more than $900,000 from filing false claims for funeral services against more than 100 consumers who bought “preneed policies” with Homesteaders Life Co. The $2.8 million in treble damages for racketeering were paid by another businessman.

A month later, in September, the board first contacting Harding about its charges against him.

The month after that, the state attorney general’s office filed a motion in state court to permanently prohibit Harding from selling preneed funeral products and services.

In July this year, the board voted 3-2 to accept Harding’s settlement proposal for having his funeral director and crematory licenses suspended for six months, followed by six months’ probation and $25,000 to cover the board’s legal fees. Three board members subsequently resigned.

Anderson wrote that the board was looking at additional legal fees of about $50,000 if it pursued the case instead of settling it and the final outcome would not have been guaranteed.

Review of Athletic Commission Seeks Financial Stability

A Government Organization subcommittee reviewed an evaluation of the state Athletic Commission today and recommendations to improve the agency’s bottom line.

Two representatives from the state Performance Evaluation and Research Division presented their review of the Athletic Commission, which oversees boxing and mixed martial arts competitions in West Virginia.

The representatives expressed concern over the commission’s ability to support itself financially, saying since 2010, the commission hasn’t taken in enough revenues to support its expenditures.

The representatives recommended the Athletic Commission be rolled into the State Lottery Commission so administrative duties and costs could be shared. The evaluation team also recommended increasing or eliminating their annual expense limit of 55 hundred dollars.