Creating the Department of Children’s Advocacy

UPDATE: The House passed this bill by a vote of 107 – 0 on 4/24/18 with one minor amendment. Upon the governor’s signature, this bill will become law. 

If the goal of a particular piece of legislation is to streamline and improve government services, then creating an entirely new department would probably not be the best way to achieve it.

Yet, that is exactly what S.805 would do. This bill would create the Department of Children’s Advocacy, charged with receiving and investigating complaints regarding children under the care of the Departments of Mental Health, Health and Human Services, Juvenile Justice, Health and Environmental Control, Disabilities and Special Needs, and more.

There are numerous concerns with this bill. First, these services are already provided by the Department of Administration’s Office of Children’s Affairs. This office advocates for improved services from other state agencies for children and families, and reviews cases through the Children’s Case Resolution System (CCRS). This system designates responsibilities of each public agency for children receiving state care, receives complaints and serves as an arbiter for potential agency dispute. S.805 would eliminate the system already in place and create an entirely new state agency to accomplish the same goal.

In addition, the Department of Children’s Advocacy would have the power to conduct independent investigations of state agencies, and their handling of cases and incidents involving children. The department would also determine any needed agency policy improvements, and any complaints regarding the new department would be handled by the state inspector general.

However, the state inspector general is already currently responsible for investigating allegations of fraud, waste, abuse, mismanagement, misconduct, violations of law, or wrongdoing of agencies. He may initiate investigations, and recommend changes in policies to the affected agencies. Again this raises the question of duplication. Why create an entirely new agency instead of allowing the inspector general to fulfil his statutory role?

If the current systems are not effective, efficient, or lack the necessary statutory mission or resources, why not focus on increasing their effectiveness instead of expanding government?

The answer lies in accountability and legislative control. Unlike the Department of Administration director or the State Inspector General, who are appointed by the governor and currently control (or should control) the services this new agency would perform, the Department of Children’s Advocacy would be controlled by lawmakers rather than the state’s executive branch.

The Department of Children’s Advocacy would be headed by a State Child Advocate selected by the Governor, with advice and consent of the Senate. However, the governor must select the State Child Advocate from nominations by a legislatively controlled committee (the Joint Citizens and Legislative Committee on Children), which would also control whether or not the governor could dismiss the State Child Advocate. Six of the nine voting members of this committee are lawmakers appointed by the House speaker and Senate president pro tem.

This is even more problematic given that this bill would not simply shift existing power to a new department: the new department would have access, at any and all “reasonable” times (a term which is not defined), to any facility, residence, or program that is operated, funded, or even licensed by a state agency. The department would have unrestricted access to all electronic information systems records, reports, materials, and employees, and could also administer oaths, examine witnesses, and issue subpoenas.

This blanket access – without the due process protection of obtaining a warrant first – is highly troubling. Under this bill, any licensed child care provider – even one who’s operating out of private residence – would be subject to warrantless search and seizure of records at any time. Records relating to the care of vulnerable children are private for a reason. This blanket power is a violation of due process, and would give enormous power to a largely unaccountable, legislatively controlled department.

Lawmakers claim that the new department would be able to operate from reallocated agency funds, and that S.805 may even result in a cost savings. However, the addition of a new department resulting in savings is unlikely given South Carolina’s consistent pattern of budget growth. This year’s House budget, for example, would increase each agency’s funding an average of 9.69%, or $12,504,053. There is little reason to believe the Department of Children’s Advocacy would not follow this trend, especially considering that the department would be charged with the new job of planning activities to educate the public about available resources, while allowing the department head to appoint deputies at will and fix their salaries.

Mechanisms are already in place to accomplish the purported goals of the Department of Children’s Advocacy. If existing oversight and management is not doing an adequate job of protecting children in South Carolina, a better use of time and resources would be to address those deficiencies rather than create a new department that will cost more and be less accountable.

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