Workforce

Count the IG among the challenges facing Social Security

The Social Security Administration (SSA) is on the Government Accountability Office's High Risk List. It is there primarily because of its long-term fiscal unce...

Tom Temin@tteminWFED

August 15, 2023 11:46 am

8 min read

The Social Security Administration (SSA) is on the Government Accountability Office’s High Risk List. It is there primarily because of its long-term fiscal uncertainty and questions about whether, in the long run, it can pay the benefits it owes retired Americans. But SSA also has an other internal management problem, stemming from its Office of Inspector General. That’s according to Federal Drive with Tom Temin‘s guest: Faith Williams, Director of the Effective and Accountable Government Program at the Project on Government Oversight (POGO).

Interview Transcript:

Tom Temin And the Office of Inspector General seems to be by published reports and research you have done, they retaliate against whistleblowers.

Faith Williams Yes, they have. And excuse my voice, by the way, I’m fighting a summer cold, as are so many of us. But what we have learned and what the whistleblowers have reported to us is that not only have they faced whistleblower retaliation in the past, but that whistleblower retaliation is ongoing. Now, one of the whistleblowers, Deborah Shaw, she won her initial case at the Merit Systems Protection Board, and that case is now on appeal. The other whistleblowers settle after essentially a financially ruinous suit. So her whistleblowing retaliation has not been confirmed in the same way, but we certainly believe what they tell us.

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Tom Temin And do we know the nature of what it is they’re blowing the whistle on?

Faith Williams We do, in fact. So it all has to do with a program called the Civil Monetary Penalty Program, and that is essentially it levies fines against people who have wrongfully received certain Social Security benefits. And that might sound like it makes sense. It does make sense. In fact the program’s been around since 1995. And if someone is receiving benefits when they shouldn’t be or if they’re receiving too much, it does make sense to investigate that and levy a fine as needed. And for many years, more than 20 years, investigators in the Social Security Administration’s Office of Inspector General who administer this program would take many factors into account when levying these penalties. So they would take, for example, was it intentional, right, or was it an accident? What is someone’s financial state? What’s their ability to pay? These are frequently, if not the vast majority of folks. These are elderly people. These are people with disabilities. These are people struggling to make ends meet. These are people that hit maybe all of those categories. And so they took those factors into account. And starting around 2017 or so, that shifted. They no longer took someone’s financial state into account, for example. And as a result, and in an attempt, we think it’s really juice the numbers of this program to make it look like it was really bringing in lots of money. These penalties became exorbitant and these two whistleblowers spoke out in alarm, not just at the size of the penalties that were being levied, which were so unusual, but also about the change in procedure in that procedure was statutory. So they blew the whistle on that as well.

Tom Temin Right. So if the Office of Inspector General then investigates these cases, sounds like they were not following the statutory requirements for bringing a case against someone receiving Social Security. And then they were also overdoing it on the penalty side, then to whom do the whistleblowers bring their claims? Do they bring it to the very office that is supposed to investigate the claims?

Faith Williams They do. And actually, that’s a key responsibility of inspectors general is statutorily they’re counsel. The OIG counsel is also the whistleblower coordinator. So that person is responsible for training their agency on whistleblower protocols, procedures, things like that. And so, yes, when these two Office of Inspector General whistleblowers raised the alarm, they did so to folks in their own office. And they were not just shut down, but they were then retaliated against. They were escorted out of the building a few months after initially raising the alarm. They were placed on a combination of sort of paid leave, and then one was terminated and then brought back and etc.. But yes, it’s sort of like the foxes guarding the henhouse in this instance.

Tom Temin We’re speaking with Faith Williams. She’s director of the Effective and Accountable Government Program at the Project on Government Oversight. But it sounds like and I want to get more to the retaliation and the aftermath, but it sounds like there’s a built in conflict of interest when the Office of Inspector General both looks at these particular types of overpayment cases, but then also receives whistleblower complaints about performance of the Office of Inspector General itself on that very program.

Faith Williams Well, it’s it’s interesting you say that. I think when the inspector general office works as intended to be, it is not a conflict of interest. These folks are supposed to adhere to, quote, the highest ethical principles. So when inspectors general are doing their jobs, are fulfilling their missions, I should say, to their fullest extent, they are absolutely the right place for whistleblowers and they are the right place to report government waste, fraud and abuse. But in instances where inspectors general or folks in the Office of Inspector General are not fulfilling their mission, yes, it becomes very much this catch 22 of I want to report wrongdoing. But what do I do? And that is why there are mechanisms in place like CIGIE, the Council of the Inspector General on Integrity and Efficiency. That’s why CIGIE exists to sort of help watch the watchdogs.

Tom Temin Do we know whether CIGIE is looking into the OIG at Social Security?

Faith Williams We do. Now, when I asked CIGIE for comment recently, they would not confirm that Inspector General Ennis or her office is under investigation. But we do know from other reports that CIGIE is looking into what has been happening. And CIGIE is not the only one investigating what’s going on. It’s truly the high fines and the change in procedure are one element of a very dysfunctional Office of Inspector General. So, for example, dozens of auditors, investigators and other staff in the OIG have quit or retired, many indicating frustration with the office’s leadership. During the pandemic, Inspector General Ennis monitored the keystrokes of some of her investigators who go out and investigate these claims. And I use that phrase deliberately. They go out and investigate these claims. Yes, some investigations you can pick up a phone or send an email, but sometimes you need, so to speak, pound the pavement and see what’s going on. So you’re not necessarily at your computer yet. She monitored keystrokes. Some investigators were disciplined or terminated, and the tactic fueled a no confidence vote from the Federal Law Enforcement Officers Association, which is pretty unusual, I would say. And all of this has an impact on morale and ongoing investigations. I mentioned the CIGIE investigation, but the acting Social Security commissioner announced an investigation last year. The Office of Special Counsel, which specifically looks at whistleblower retaliation, is also investigating. The Office of Personnel Management, audited the IG’s Workforce planning strategy. They completed that audit, but other concerns were raised about staff departures. So now they’re digging into that as well.

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Tom Temin Sounds like they’re losing places to hide. But I want to get back to the whistleblowers themselves. You said one just gave in because of a ruinous lawsuit. What was that mechanism? She was suing the agency to get her job back?

Faith Williams Well, she basically took her claim to the MSPB, the Merit Systems Protection Board, which is where employees can go to have recourse against grievances filed against them, terminations, things like that. And there’s some subtleties in there, but that’s essentially what it does. But these employees, they pay their own legal bills to do that, and that makes them think they can use the agency’s counsel in a case like this. And, of course. But these fees are truly ruinous. I mean, you’re talking about potentially tens, if not hundreds of thousands of dollars.

Tom Temin Yes, you could get your back pay and legal fees, but that can take ten years, sometimes Literally.

Faith Williams It can take a long time. I mentioned that one of the whistleblowers, an administrative judge, found prima facie retaliation in her case. The Office of Inspector General at Social Security appealed that decision. And so all of those remedies are on hold until that appeal is heard or decided, I should say. And there’s a huge backlog at the MSPB because it was without quorum for many years. So I know the folks over there are working as hard as they can to get through their backlog, but it could be years.

Tom Temin And the position of IG of inspector general at Social Security is that person appointed by the commissioner or is that one of the presidentially appointed IGs?

Faith Williams Yes, that’s a presidentially appointed inspector general.

Tom Temin Which means that the acting commissioner and I think she’s been acting now for the entire length of the Biden administration. I don’t know how she stays in the job because of the administrative rules around that. But nevertheless, she’s there. Really can’t get rid of the inspector general if she wanted to.

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Faith Williams No, she cannot. And so that is why Project on Government Oversight has urged President Biden to remove the inspector general and us. And we know that it can be fraught when we talk about removing inspectors general, especially when we cast back to the last administration. But new rules have been put in place to tighten how and when inspector generals are removed. And those are good rules. And when an inspector general has overseen an office, if not personally retaliated against whistle blowers and has overseen so much dysfunction, that is a toxic inspector general and they must be removed.