Four federal inspectors general appeared before a Senate Homeland Security & Government Affairs Committee hearing Tuesday and asked Congress to strengthen the tools IGs use to perform oversight over their respective agencies.
“Year in and year out, the Inspector General community has demonstrated its ability to root out waste, fraud, abuse, mismanagement, and misconduct through our audits, investigations, inspections, and reviews,” said Michael E. Horowitz, Justice Department IG and chairman of the Council of the Inspectors General on Integrity and Efficiency (CIGIE). “Our efforts result in agencies that are more effective and efficient. The foundation for this work is our independence and central to that is our ability to access information that is in the possession of the agencies that we each oversee.”
Horowitz told committee members that CIGIE would soon be delivering a letter to them outlining specific areas where Congress could strengthen the IGs’ ability to do their jobs.
The first would be to pass legislation to remove the limitations placed on IGs by the Computer Matching and Privacy Protection Act (CMPPA) to information the Inspector General Act says they have the ability to access.
“The information at issue currently exists within the possession of government agencies — it does not require any further collection of documents or information — and Inspectors General of the agency are already entitled to access it under the IG Act,” Horowitz said, in his written testimony. “Yet the CMPPA contains provisions that impact the ability of Inspectors General to efficiently obtain information from another agency and to share it with each other. The timely use of such data by Inspectors General to identify those who improperly receive federal assistance, federal grants or contracts, or duplicative payments will improve program efficiency, enhance recovery of improper payments, and empower Inspectors General to better address waste, fraud, and abuse in federal programs. In my view, exempting Inspectors General from the CMPPA would greatly assist our ability to ensure that federal programs are effective and efficient without undermining the purposes of that law.”
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CITIE would also like IGs to have the ability to obtain testimony from former federal employees, contractors and grant recipients.
“While the IG Act provides us with the ability to subpoena documents and records from those individuals, we are unable to require them to provide testimony, even if they have critical evidence of fraud or of agency misconduct. … While I believe any authority granting Inspectors General the ability to compel testimony should include protections to ensure the authority is used appropriately and only when necessary, and that it does not inadvertently impair Justice Department prosecutions, I am confident based on my years as a former federal prosecutor and as a senior official in the Department’s Criminal Division that such protections can readily be developed while also empowering Inspectors General to carry out their responsibilities,” Horowitz wrote.
In addition, CIGIE proposed statutory changes to the Program Fraud Civil Remedies Act (PFCRA) to help it recover damages in smaller dollar cases in a faster and lower-cost manner.
“We also need to address the concerns that have been raised recently relating to the work of CIGIE’s Integrity Committee, including with respect to the timeliness of its work and the transparency of its efforts,” Horowitz wrote. “One of my first meetings as Chair of Council of IGs was with the Assistant Director of the FBI, who chairs the Integrity Committee, in order to discuss ways to address these issues. Inspectors General must maintain the highest levels of accountability and integrity, and as Chair of the Council of IGs, I will make it a top priority to improve the procedures for the Integrity Committee.”
FBI continues to deny timely access to some records
Horowitz told the committee his office continues to face challenges in obtaining information in a timely manner from other components within DoJ.
“In particular, the FBI continues to take the position it first raised in 2010 that Section 6(a) of the Inspector General Act does not entitle the DOJ OIG to all records in the FBI’s possession and therefore has refused DOJ OIG requests for various types of records,” Horowitz said, in his written testimony. “As I have indicated in my prior testimony, the DOJ OIG and CIGIE strenuously disagree with the FBI’s position, which we have both made clear to the Department’s leadership.”
DoJ leadership asked the Office of Legal Counsel in May 2014 to resolve the conflict between the FBI and the DoJ OIG. Nine months have passed and Horowitz is still waiting for an opinion on the matter.
“I cannot emphasize enough how important it is that OLC issue its opinion promptly because the existing process at the Department, which … essentially assumes the correctness of the FBI’s legal position, undermines our independence by requiring us to seek permission from the Department’s leadership in order to access certain records. The status quo cannot be allowed to continue indefinitely,” Horowitz said, in his written testimony.
He did applaud Congress for including in the Fiscal Year 2015 appropriations law Section 218, which prohibits DoJ from using appropriated funds from impeding the IG office’s access to records and other materials within the department’s possessions, except where limited by Section 6(a) of the IG Act.
Despite this show of bipartisan support from Congress, the FBI continues to affirm that Section 6(a) “does not authorize access to certain records in its possession, such as grand jury, Title III electronic surveillance, and Fair Credit Reporting Act information, because of disclosure limitations in statutes other than the IG Act,” Horowitz wrote.
This month alone, the DoJ IG twice invoked Section 218 when the FBI didn’t provide timely access to records in two whistleblower retaliation investigations.
High number of acting-IGs raises concerns
Another area of concern discussed during the hearing was the large number of acting IGs overseeing federal agencies. Currently, there are 11 IG vacancies, with only one nominee pending.
Among the larger agencies, the CIA, the U.S. Agency for International Development, the General Services Administration and the departments of Veterans Affairs and Interior are all operating under an acting-IG. The VA, for example, hasn’t had a permanent IG since December 2013.
“One of the issues is simply making these positions priorities in terms of the nominating process, the vetting process and then the confirmation process,” Horowitz said.
Three of the four IGs testifying before the committee Tuesday were from agencies that had recently operated under acting-IGs for a length of time. Horowitz’s predecessor announced that he was stepping down in January 2011.
“I was nominated in July of 2011 and confirmed in March of 2012,” Horowitz said. “Even with sufficient notices, the process took a lengthy period of time. There are plenty of available candidates who are interested in becoming IGs. I know, six weeks now in the job as chair of the Council of IGs, we send resumes to the Presidential Personnel Office of interested candidates that we’ve looked at and vetted, and there has to be a commitment to move these nominations promptly.”
Committee Chairman Ron Johnson (R-Wis.) called that a significant problem.
“If there are plenty of people available for the position, we need to get those nominated and I certainly think this committee will be dedicated to moving those through the confirmation process as quickly as possible,” he said.
Johnson described that when he and Sen. Claire McCaskill (D-Mo.) had been investing low morale at the Homeland Security Department, they saw the “corrosive” and “improper” effects an acting-IG who might by vying for the full-time job could have on an agency.
“Both because of the threat to the independence of the IG as well as the appearance of the threat to the independence of the IG, really, it doesn’t matter if you’re independent or not independent, once you’ve lost that perception of independence, you’re pretty much done,” said John Roth, DHS’ current IG. “The only difference between me and the rest of the 25,000 people in the Department of Homeland Security is that I’m in fact independent and I’m perceived to be that way. That is the value that we add, and once you lose that, you are simply can never be effective again.”
Impact of possible shutdown at DHS, continuing resolutions on oversight
Roth also told the committee that if Congress fails to approve funding for DHS after the current continuing resolution runs out on Feb. 28, the agency will face significant challenges.
“After Friday, of course, if there’s a shutdown, then even the administrative portion of DHS will go away,” Roth said. “So, the oversight part of DHS will go away and people will engage in jobs necessary to save life and property and do nothing else. So, it is a significant challenge for the department as a oversight entity. We see what occurs during a continuing resolution and certainly a shutdown, which is you cannot improve the department. You cannot make the department better because it is not possible to put programs in place to do that.
The committee asked the other IGs at the hearing to share how operating under a series of continuing resolutions over the last several years has impacted their ability to provide agency oversight.
Horowitz: “In the 2 1/2 years that I’ve been the IG, I’ve faced the budgeting process where I don’t think any year that I’ve been here I’ve had a budget on Oct. 1 that I can plan on. It’s come in either 3 months or 6 months into the year, and it is very difficult to plan when almost 80 percent, I believe, of our costs are personnel costs. It’s all about who we can hire and whether we can hire and it is simply too impossible to plan for hiring if you don’t know 9 months from now whether you’re going to continue to have the kind of budget that would allow you to hire people behind it. It’s a very big challenge.”
Steve A. Linick, State Department IG: “In Fiscal Year 2013, our appropriation was reduced almost $6 million between the full-year CR and sequestration. For an office like ours, which is trying to grow and strengthen oversight, it makes it very difficult.”
Patrick P. O’Carroll Jr., Social Security Administration IG: “We are independent. We get a separate appropriation than Social Security does. They’re supportive of us and we have been very fortunate in terms of appropriations. However, over the last few years, as everyone well knows, we’re going from one continuing resolution to another, which kept our base pretty much flat. At the same time, our costs were going up, and then also with cuts on top of that, we’ve had pretty much a 10 percent reduction in staff over the last few years. So, as all the demands are going up, our resources are declining. We do need a sustainable budget into the future so we can make these important plans.”