The Trump administration’s shakeups in the inspector general community have caused a stir on Capitol Hill, with Democrats and Republicans both looking at legislative fixes to improve the independence of agency oversight
The COVID-19 Whistleblower Protection Act, which Democrats in the House and Senate introduced this week, would give the Labor Department the authority to investigate retaliation claims from non-federal employees or contractors who report fraud, waste or abuse stemming from pandemic spending.
The legislation would also give non-federal whistleblowers access to jury trials in federal court if administrative efforts don’t come through in a timely manner.
“Although I do not agree with the President’s stated reasons for removing IGs [Michael] Atkinson and [Steve] Linick, my objection to these nominees was designed to prompt compliance with the IG Reform Act, which the president has now done,” Grassley said in a statement.
Despite these shakeups, IGs continue to work with the Pandemic Response Accountability Committee on its oversight of issues that stem from the government’s continuity of operations under the coronavirus.
In its first major report, the PRAC found that 963 facilities owned or leased by the General Services Administration had positive or presumed cases of coronavirus since May 7. IGs also reported to the committee telework limitations and IT difficulties that have put a strain on agency continuity of operations.
But with agency IGs working under the assumption that the president can remove them for any reason, former National Reconnaissance Office Inspector General Eric Feldman said IGs could just as easily stick to routine audits of contracts and programs rather than delve into controversial subjects.
“You can spend an entire career as an IG not touching anything controversial. And today, given what’s happened, why would an IG want to tackle tough issues, allegations against the agency head or issues that get to the very heart of that agency’s performance? I think there’s a disincentive to do that, because we have not demonstrated that we can keep the IGs safe and independent,” Feldman said in an interview.
Likewise, agency whistleblowers grow to distrust the IG review process. High-profile IG investigations often shed light on agency wrongdoing, but the vast majority of issues brought to an IG office don’t result in a complete investigation, because the office can’t substantiate a tipster’s observations.
Some whistleblowers, Feldman said, report something suspicious, but it doesn’t rise to the level of the IG taking action because they don’t have all the information.
“If every allegation that employees had immediately went outside the agency to congressional committees, or to the press, you would have just so many sensationalized issues that are not based in fact. It’s really the IG that is there to determine whether there is fact surrounding people’s allegations, and it’s an orderly and I think a very efficient process if it’s done right,” he said.
But in order for that process to work, whistleblowers have to have confidence that an IG will take the due diligence to look into their complaint or tip without political interference.
“They want to see results, and if they don’t see results, then they’ll go outside to other organizations at times to get attention on their particular subject,” Feldman said.
Among the recommendations lawmakers could pursue, GAO Comptroller General Gene Dodaro suggested Congress could revise the IG Act so that a president would be limited to removing an IG “for cause.” Lawmakers could put similar limitations around a president’s ability to put an IG on administrative leave.
Congress, he added, should also consider amending the Vacancies Act to require the first assistant IG to serve as the acting IG if a sitting IG is removed. If there is no assistant IG, then it should be an OIG staff member who is a member of the Senior Executive Service.
But agencies face a unique set of challenges when a president names a political appointee as an acting IG.
“It is important that independence, of mind or appearance, not be sacrificed for other factors in the staffing and leadership of OIGs,” Dodaro wrote. “While short-term designation of an acting IG from an agency management position may not automatically be problematic, it must be handled carefully. To protect the independence and integrity of the OIG’s work, an acting IG should be vigilant in evaluating independence and applying appropriate safeguards.”
Likewise, Feldman said acting IGs may find themselves in a tough situation when career OIG staff want to move aggressively on their oversight work, but the acting IG fears he or she will receive political retaliation for that work.
There are teams of investigators and auditors, how willing are they going to be to put their neck on the line and tackle tough issues and controversial issues,
Feldman said IGs in the intelligence community peer review each other’s work, and suggested that the Council of the Inspectors General on Integrity and Efficiency could conduct similar oversight for civilian agency IGs.
In addition, Feldman suggested Congress consider requiring CIGIE to review the performance of an IG if a president seeks to remove them.
“If there are allegations against a particular IG not meeting his or her responsibilities, acting without integrity or violating some rule, those can be effectively investigated by other IGs, and then you would know whether it was true or not, and whether politics intervened in that allegation or not,” Feldman said.