As State Comptroller Micha Lindenstrauss approaches the end of his term, IDI Former President and Founder Dr. Arye Carmon takes issue with him for overstepping the bounds of his authority and for his excessive media presence. In this op-ed originally published in Hebrew in Yedioth Ahronoth, Dr. Carmon singles out Lindenstrauss's statements that the Comptroller's office is the "fourth branch of government" and that "everything is auditable."
In several months, Micha Lindenstrauss will reach the end of his term as State Comptroller. Just before his office publishes even more reports that are "among the harshest ever issued," we should consider what we will be left with after the current Comptroller is gone, since this question may be both food for thought and a preliminary basis for action by his successor. At issue are the way Lindenstrauss fulfilled his role and the place and weight that the public ascribes to his work.
Lindenstrauss conducts himself differently than all of his predecessors. The scope, method, and style of his audits are different. His unusually high visibility in the media has a negative impact on the ability of the subjects of his investigations to function, and—worse—on the responsibility borne by the public in Israel's democratic society. As a result, Lindenstrauss is the most controversial Comptroller that Israel has ever had.
Two statements that have been attributed to the State Comptroller reflect his unusual behavior. The first is his assertion that the State Comptroller's office is the "fourth branch of government," while the second is his statement that "everything is auditable" (similar to Justice Aharon Barak's statement that "everything is justiciable"). While neither of these assertions is correct, each is a testament to the way the Comptroller perceives his role and the way in which he would like to be perceived by the public. According to the law, the State Comptroller is an independent arm of one of the three branches of government-the Knesset, which appoints him. His job, by law, is to help the Knesset fulfill its role as a leading overseer of the Executive Branch. And just as not everything is justiciable, everything is most certainly not auditable. An additional aspect of the Comptroller's behavior that is problematic is his constant media presence, which gives the impression that he has reached his conclusions before the proceedings mandated by law have ended and before the subjects of his investigation have been given the opportunity to respond.
The Executive Authority in Israel-the public sector, with its many branches-is the subject of the Knesset's oversight via the State Comptroller. The Executive is supposed to fulfill two objectives: to faithfully and efficiently serve the citizens of Israel and to implement the policies of the elected government. It is in the public interest that these two goals be implemented correctly and effectively. The Comptroller's audits are intended to improve the functioning of government systems, and the role that these audits may play is clearly delineated and limited. The comptroller's audits may not interfere in determining budgetary priorities stemming from government policy. The privatization of Israeli hospitals or the government's water policy, for example, are matters of policy that are beyond the scope of the Comptroller's authority; if he deals with these issues, he will be outside the purview of his job. Similarly, the Comptroller is not entitled to critique the government's policy regarding the scope of the health system's basket of services, the number of buildings constructed for the educational system, or the number of fire trucks in the country.
In The State Comptroller: A Critical Look, published as Policy Paper 81 of the Israel Democracy Institute, Dr. Michal Tamir wrote: "In the past, beyond legislation defining the limits of the State Comptroller's audits, informal limitations were also formulated. According to one of these informal principles, the comptroller's job is not to find those who are personally responsible for faults.... The State Comptroller's concern is state systems and institutions, not people" (p. 115). According to Dr. Tamir, State Comptroller Lindenstrauss set a new policy that authorizes him to determine personal liability and draw personal conclusions. The Basic Law: The State Comptroller and the State Audit Law refer to audits of an "inspected body" not to personal audits. This is sufficient to preclude the State Comptroller from establishing personal responsibility.
The State Comptroller is undoubtedly a key player in determining norms for the government system. Success in establishing norms, which is clearly in the interest of the public, depends on the Comptroller's style and approach—on how he or she defines the norms for implementing governmental action. It is difficult to say that Lindenstrauss's style is constructive. On the surface, it would appear to create intimidation and paralysis. A senior manager in the public service once told me that when he tried to recruit quality workers from the private sectors for interesting jobs in a government ministry, he was turned down with the response "Do I need Lindenstrauss embarking on a witch hunt against me?"
We do not know the nature of the Comptroller's relationship with the media, as it is conducted away from the public eye. But we do know the impact his excessive media presence has on the functioning of the system. One of the outcomes is the blatant violation of the "principle of anonymity" that was rigorously protected by previous Comptrollers. Even worse are the headlines about the personal responsibility of ministers that are plastered across the front pages of newspapers even before the ministers have seen the draft of the audit report and have been able to respond, as required by law. This compromises the fairness of the review process. According to a ruling by the Israeli Supreme Court, if the Comptroller enters the realm of personal responsibility, he must scrupulously protect the right to be heard of those who might be harmed by his report. Lindenstrauss has failed miserably in this regard.
A tsunami of audit reports is expected to wash over us in the coming months. In order to prevent the development of a "Big Brother" culture in which the Israeli public is a viewing audience with no critical responsibility, it is important that we, the public, critically consider the degree of investigation by the State Comptroller that is appropriate.
Dr. Arye Carmon is the Former President and Founder of the Israel Democracy Institute.
This op-ed was originally published in Hebrew in Yedioth Ahronoth on January 31, 2012.