Comptroller under scrutiny

Not long ago, Justice Minister Yaakov Neeman tried to diminish the attorney general's status by splitting the job in two. Now, it is the state comptroller's turn to face public scrutiny.

The State Comptroller's Office, currently headed by retired judge Micha Lindenstrauss, has won praise for its achievements, mainly in fighting governmental corruption. However, it has also been a target of criticism. Inter alia, critics say the comptroller is too quick to probe every topic that hits the headlines.

Here are a few issues the comptroller has at least considered examining in recent months: the well-publicized confrontation between Bank Hapoalim owner Shari Arison and the Bank of Israel over the latter's demand that Arison fire bank chairman Danny Dankner; Israel Discount Bank chairman Shlomo Zohar's golden parachute; the way the health system has coped with the swine flu epidemic; the circumstances that led Prof. Zvi Galil to resign as president of Tel Aviv University. And that is just a partial list.

A new study sponsored by the Israel Democracy Institute and carried out by Dr. Michal Tamir, an expert in public law at Sha'arei Mishpat College, argues that the state comptroller's role should be redefined and, effectively, reduced. For instance, she says, the comptroller should deal only with general issues, not with specific individuals, and he should avoid real-time scrutiny, so as not to infringe on the executive branch's work.

IDI Vice President Prof. Mordechai Kremnitzer, who - coincidentally or not - is a prominent supporter of splitting the attorney general's job, supervised the study.

Tamir's recommendations would redefine the boundaries of the comptroller's work, which she believes have expanded unduly in recent years. She believes the comptroller should confine himself to issues of efficiency, administration and accounting and not, for example, possible illegalities by the people he scrutinizes.

"Today, the limits of the comptroller's role are vague," said Tamir. "The state comptroller cannot determine what is legal and what is not, but only which things need to be brought immediately to the attorney general's attention, and later the courts. Throughout the world, the state comptroller's role is to examine whether government systems are working effectively and efficiently and to look into administrative and accounting failures. He has to determine whether a government organization is working effectively or not. He should not be examining whether or not [former] prime minister Ehud Olmert accepted pens as gifts."

Tamir got angry when asked whether she wants to make the comptroller just another bureaucrat. "Bureaucrat is not a dirty word," she said. "The attorney general is also a bureaucrat - who is at the top of the pyramid. It has to be understood that the state comptroller is not part of the judiciary. He is an auditing agency in the framework of the Knesset. In Israel, there is a bizarre situation of overlap between the High Court of Justice, the State Comptroller's Office and the Attorney General's Office. Each of them invades the others' territory. This is an improper and illogical situation."

While Tamir's study expresses reservations about the comptroller investigating individuals or specific issues, she agrees that the distinction between a specific issue and a general issue is not clear-cut and is subject to interpretation.

But she disapproves of the comptroller's decision to examine the conduct of the police and prosecution in former minister Haim Ramon's trial for forcibly kissing a female soldier. The law enforcement agencies concealed wiretapping evidence from Ramon that might have helped his defense. But Tamir believes the comptroller should have focused on general problems with these agencies' use of wiretaps, and not dealt with a specific case concerning a specific individual.

"The state comptroller is not a judicial body," said Tamir. "He does not need to hear witnesses, he does not need to examine evidence and he does not need to write a sort of verdict. It is not his job to examine issues involving specific persons, such as a bank chairman's retirement benefits or the renovation of the former Knesset speaker's apartment - just as Knesset laws are general, not directed at a particular individual. And if they aren't, then we suspect bias toward a group or an individual."

By contrast, she thinks the comptroller is correct to examine how various Israeli agencies deal with greenhouse gas emissions, or how the health system is dealing with swine flu.

As for the Olmert case, Tamir believes it is an example of the comptroller being used to score political points. "If somebody suspected criminal activity, he should have gone to the police or the attorney general," she said. "Why go to the state controller?"

Tamir believes the comptroller should not conduct real-time reviews because this could blur the boundaries separating the different branches of government. Real-time reviews, she said, could lead to the comptroller "replacing the considered judgment of the executive branch and disrupt the balance among the branches [of government]. There is the impression that in government agencies today, everyone is trying to deal with everything. There is a feeling of disorder, of each body trying to invade another's territory."

High-profile backers

Former civil service commissioner Prof. Itzhak Galnoor, of Hebrew University's political science department, backs Tamir. In a discussion of her research held at IDI, Galnoor said, "the state comptroller's role is an administrative one - administrative review."

Like Tamir, Galnoor believes the comptroller should examine general issues, not specific ones. "The specific case," Galnoor said, "has to be entirely subordinated to the consideration of whether it illuminates the general situation ... This means exercising some restraint, not looking for guilty parties, not chopping off heads and not going after whatever issue tops the day's agenda."

Galnoor also agrees that reviews should be after the fact, not in real time, with the goal of helping lawmakers carry out their role of supervising governmental agencies.

Kremnitzer, too, believes the comptroller's role should be kept firmly within limits. Government institutions in Israel, he said, have not yet found effective ways to deal with people who are not doing their jobs, but are not criminals. He thinks this vacuum should be filled by the Civil Service Commission, not the comptroller. Otherwise, the comptroller's job will be "judicialized."

He also shares Tamir's reservations about scrutinizing individuals. But unfortunately, he said, the media are not interested in "the gray of structural flaws. There is something structural here that pushes the comptroller to deal with individuals, and it is necessary to step into the breach."

The thread linking attempts to redefine the attorney general's job and that of the comptroller, in Kremnitzer's view, is that each body needs to focus on its main tasks and not deviate from them.

The State Comptroller's Office said it welcomed Tamir's study, as "[comptroller's] reviews have become an important factor in Israel's institutional landscape."

Boaz Aner, the office's deputy director general, told Haaretz that the last few state comptrollers - Miriam Ben-Porat, Eliezer Goldberg and now Lindenstrauss - all rejected the distinction between specific and systemic reviews. If, for instance, the office is examining political appointments in a government ministry, it is impossible not to deal with names, he said. Thus when Goldberg examined former minister Tzachi Hanegbi's political appointments, his report necessarily dealt with specific individuals.

Previous comptrollers began publishing the names of the individuals they scrutinized, and Lindenstrauss has expanded this practice, Aner added. But he stressed that such individuals are given the right to respond and are allowed to see all the material upon which any criticism of them is based.

He rejected the argument that review should focus exclusively on efficiency, administration and accounting. "The world of review has developed and is still developing," he said. "If until the 1940s, the basis for review was legality, propriety, and orderliness in the bodies reviewed, nowadays review has also expanded into issues like savings, effectiveness [and] evaluation of plans."

Aner is a great believer in real time, an approach that has gained strength during Lindenstrauss' tenure. Reviews, he said, must be relevant and timely, including with respect to issues in the headlines. Thus just as Ben-Porat reviewed immigrant absorption in real time, he argued, Lindenstrauss was justified in examining home front preparedness during the Second Lebanon War in real time.