[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
INSPECTORS GENERAL: INDEPENDENCE AND INTEGRITY
=======================================================================
HEARING
before the
SUBCOMMITTEE ON GOVERNMENT MANAGEMENT,
ORGANIZATION, AND PROCUREMENT
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 20, 2007
__________
Serial No. 110-48
__________
Printed for the use of the Committee on Oversight and Government Reform
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index.html
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HENRY A. WAXMAN, California, Chairman
TOM LANTOS, California TOM DAVIS, Virginia
EDOLPHUS TOWNS, New York DAN BURTON, Indiana
PAUL E. KANJORSKI, Pennsylvania CHRISTOPHER SHAYS, Connecticut
CAROLYN B. MALONEY, New York JOHN M. McHUGH, New York
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
DANNY K. DAVIS, Illinois TODD RUSSELL PLATTS, Pennsylvania
JOHN F. TIERNEY, Massachusetts CHRIS CANNON, Utah
WM. LACY CLAY, Missouri JOHN J. DUNCAN, Jr., Tennessee
DIANE E. WATSON, California MICHAEL R. TURNER, Ohio
STEPHEN F. LYNCH, Massachusetts DARRELL E. ISSA, California
BRIAN HIGGINS, New York KENNY MARCHANT, Texas
JOHN A. YARMUTH, Kentucky LYNN A. WESTMORELAND, Georgia
BRUCE L. BRALEY, Iowa PATRICK T. McHENRY, North Carolina
ELEANOR HOLMES NORTON, District of VIRGINIA FOXX, North Carolina
Columbia BRIAN P. BILBRAY, California
BETTY McCOLLUM, Minnesota BILL SALI, Idaho
JIM COOPER, Tennessee JIM JORDAN, Ohio
CHRIS VAN HOLLEN, Maryland
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
JOHN P. SARBANES, Maryland
PETER WELCH, Vermont
Phil Schiliro, Chief of Staff
Phil Barnett, Staff Director
Earley Green, Chief Clerk
David Marin, Minority Staff Director
Subcommittee on Government Management, Organization, and Procurement
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania BRIAN P. BILBRAY, California
CHRISTOPHER S. MURPHY, Connecticut TODD RUSSELL PLATTS, Pennsylvania,
PETER WELCH, Vermont JOHN J. DUNCAN, Jr., Tennessee
CAROLYN B. MALONEY, New York
Michael McCarthy, Staff Director
C O N T E N T S
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Page
Hearing held on June 20, 2007.................................... 1
Statement of:
Hill, Eleanor J., former Inspector General, U.S. Department
of Defense; Kenneth M. Mead, former Inspector General, U.S.
Department of Transportation; Nikki L. Tinsley, former
Inspector General, Environmental Protection Agency; Jeffrey
C. Steinhoff, Managing Director, Financial Management and
Assurance, Government Accountability Office; and Vanessa
Burrows, Legislative Attorney, Congressional Research
Service, accompanied by Fred M. Kaiser, Specialist in
American National Government, Congressional Research
Service.................................................... 48
Burrows, Vanessa, and Fred M. Kaiser..................... 97
Hill, Eleanor J.......................................... 48
Mead, Kenneth M.......................................... 62
Steinhoff, Jeffrey C..................................... 76
Tinsley, Nikki L......................................... 71
Johnson, Clay, Deputy Director for Management, Office of
Management and Budget, Executive Office of the President,
and Chair, President's Council on Integrity and Efficiency
and Executive Council on Integrity and Efficiency; Phyllis
K. Fong, Inspector General, U.S. Department of Agriculture,
and Chair, Legislation Committee, President's Council on
Integrity and Efficiency; and Christine C. Boesz, Inspector
General, National Science Foundation, and Vice Chair,
Executive Council on Integrity and Efficiency.............. 16
Boesz, Christine C....................................... 30
Fong, Phyllis K.......................................... 22
Johnson, Clay............................................ 16
Letters, statements, etc., submitted for the record by:
Boesz, Christine C., Inspector General, National Science
Foundation, and Vice Chair, Executive Council on Integrity
and Efficiency, prepared statement of...................... 32
Burrows, Vanessa, Legislative Attorney, Congressional
Research Service, and Fred M. Kaiser, Specialist in
American National Government, Congressional Research
Service, prepared statement of............................. 99
Davis, Hon. Tom, a Representative in Congress from the State
of Virginia, prepared statement of......................... 121
Fong, Phyllis K., Inspector General, U.S. Department of
Agriculture, and Chair, Legislation Committee, President's
Council on Integrity and Efficiency, prepared statement of. 23
Hill, Eleanor J., former Inspector General, U.S. Department
of Defense, prepared statement of.......................... 52
Johnson, Clay, Deputy Director for Management, Office of
Management and Budget, Executive Office of the President,
and Chair, President's Council on Integrity and Efficiency
and Executive Council on Integrity and Efficiency, prepared
statement of............................................... 19
Mead, Kenneth M., former Inspector General, U.S. Department
of Transportation, prepared statement of................... 65
Miller, Hon. Brad, a Representative in Congress from the
State of North Carolina, prepared statement of............. 7
Steinhoff, Jeffrey C., Managing Director, Financial
Management and Assurance, Government Accountability Office,
prepared statement of...................................... 78
Tinsley, Nikki L., former Inspector General, Environmental
Protection Agency, prepared statement of................... 73
INSPECTORS GENERAL: INDEPENDENCE AND INTEGRITY
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WEDNESDAY, JUNE 20, 2007
House of Representatives,
Subcommittee on Government Management,
Organization, and Procurement,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:05 p.m., in
room 2247, Rayburn House Office Building, Hon. Edolphus Towns
(chairman of the subcommittee) presiding.
Present: Representatives Towns, Maloney, Davis of Virginia,
Duncan, and Bilbray.
Also present: Representatives Cooper and Miller.
Staff present: Michael McCarthy, staff director; Velvet
Johnson, counsel; Cecelia Morton, clerk; Alex Cooper, minority
professional staff member; Larry Brady, minority senior
investigator and policy advisor; and Patrick Lyden, minority
parliamentarian and member services coordinator.
Mr. Towns. The subcommittee will come to order.
Today's hearing is on the important role of the Inspector
General in providing independent oversight within Federal
agencies by investigating and reporting waste, fraud, and abuse
to both agency leaders and to the Congress. Inspectors General
play a critical role in maintaining checks and balances in the
Federal Government. When Congress created the Inspector General
nearly 30 years ago, the idea was that having an independent
official inside the Federal agencies would help detect and
prevent wasteful spending and mismanagement. This concept has
been a tremendous success.
Investigations by IGs have resulted in the recovery of
billions of dollars from companies and individuals who
defrauded the Federal Government. These investigations have led
to thousands of criminal prosecutions, debarments, exclusions,
and suspensions. In 2006, alone, audits by IG offices resulted
in $9.9 billion in potential savings from audit recommendations
and $6.8 billion in investigative recoveries.
In sum, the IG work to ferret out criminal and abusive
action in Government has gone a long way to create the clean
and efficient Government the taxpaying public expects and
deserves.
Of course, even the best system needs some improvement from
time to time, and that is why we are here today. To effectively
carry out their mission, Inspectors General must be independent
and objective, which requires that they be insulated from
improper management and political pressure.
To preserve the credibility of the office, Inspectors
General must also perform their duties with integrity and apply
the same standards of conduct and accountability to themselves
as they apply to the agencies that they audit and investigate.
In recent years there have been several episodes which
raised questions about the independence and accountability of
the IGs. We have compiled a report for the record that
documents some of these episodes, many of which have been in
the press recently. Today, we want to look at some of the
common problems that these cases identify and how we can fix
them.
Does lack of input into budget decisions threaten the
independence of IGs? Is there a consistent and credible process
for investigating allegations of wrongdoing against IGs? What
is the proper relationship between the head of a Federal agency
and the Inspector General? These are the types of questions
today's hearing will address.
I believe there are legislative changes we can make that
will improve the institutional standing of the Inspector
General and better guarantee their independence and
accountability. My colleague from Tennessee, Representative Jim
Cooper--who came to Congress with me and then left and came
back, is back with us again--has introduced H.R. 928, the
Improving Government Accountability Office Act, to do just
that. There is a bill in the Senate that fixes some of the pay
disparities that career employees face if they are appointed as
IGs. My friend from New York City, Mrs. Maloney, has introduced
H.R. 2527, which would streamline IG operations at the IRS.
I welcome all of these witnesses. We have assembled a group
of current and former IGs and a senior administration leader on
IG issues, and experts from GAO and the Library of Congress.
The goal today is to get your input on these issues and these
bills.
I always say that we need good input in order to get great
output. The output will be a strong bill that will help IGs
maintain their role as honest brokers and continue the valuable
work that they do for Congress and the taxpayers.
I ask unanimous consent that the gentleman from Tennessee,
Mr. Cooper, and the gentleman from North Carolina, Mr. Miller,
participate in today's hearing. Mr. Cooper, of course, is a
member of the full committee, but not this subcommittee. Mr.
Miller is the Chair of the Science and Technology subcommittee
that oversees NASA, and recently held a hearing on the
Inspector General's office there.
I also ask unanimous consent that all Members have 5
legislative days to submit opening statements for the record.
Without objection, so ordered.
I recognize now the ranking member of this subcommittee
from the great State of California, Mr. Bilbray, for his
opening statement.
Mr. Bilbray. Thank you, Mr. Chairman.
I appreciate the chance to be able to discuss this subject.
Let's face it, the IG in no little ways are sort of Congress'
eye in the sky. Our ability to actually perceive what is going
on or what is not going on properly is very important.
I would just like to say to my colleague from Tennessee,
like myself, a newly recycled Member of Congress, the fact is
that this hearing will give us the ability to review
opportunities and challenges, see how H.R. 928, as drafted,
will help, maybe be able to find some ways that maybe it can be
improved and we can move forward, but I think the real issue
here is, regardless of your party affiliation, I think we have
had concerns about the ability of the IG to do their work
appropriately and effectively.
I know that in the previous administration, during my other
life in Congress, there were major concerns. I am sure that the
same concerns exist today with the new administration.
Hopefully with this hearing we will be able to identify exactly
what needs to be done from a legislative point of view to get
back on track with the intention that Congress move forward
with the IG 30 years ago.
I think outcome is what really matters here. In the
reality, the standards that we set for the IG in either H.R.
928 or in the other legislation we may do this year or next
year will not be one that just affects a Republican
administration. It will affect every administration for the
next decade or two decades. I think that is the standard we
really need to shoot for. Hopefully, we will be able to work
together, understanding that this legislation and this
oversight is a service to the American people, and that matters
most.
With that, Mr. Chairman, I yield back.
Mr. Towns. Thank you very much.
Any other opening statements?
Mr. Cooper. Mr. Chairman.
Mr. Towns. Mr. Cooper.
Mr. Cooper. If I could just thank you for your kindness in
holding this hearing, not only on these important issues,
because IGs, as the gentlemen from New York and California have
just stated, are one of the most important parts of Government,
but also I appreciate your including my bill, H.R. 928. I look
forward to the expert testimony from the witnesses.
Thank you, Mr. Chairman.
Mr. Towns. Thank you.
Yes, Mr. Miller?
Mr. Miller. I would like a chance to speak just briefly on
the nature of my interest as chairman of the Investigations and
Oversight Subcommittee of the Science and Technology Committee.
Mr. Towns. The gentleman is recognized.
Mr. Miller. I agree with Mr. Bilbray that Inspectors
General play an important role for Congress in being our eyes
and ears throughout the executive branch of Government so that
we can perform our functions of oversight, we can know what is
going on, whether there is misconduct or whether there is
simply a way to run Government better. Inspectors General are
an important part of that.
The Inspector General Act of 1978 required that Inspectors
General be selected without regard to political affiliation and
solely on the basis of integrity and demonstrated ability in
accounting, auditing, financial analysis, law, management,
management analysis, public administration, and investigations.
They are nominated by the President, they are confirmed by the
Senate.
The Inspectors General have sweeping powers to look at what
is going on in agencies, and they are to report to us, to
Congress, as well as to the agency head. They can be removed by
the President, but in any removal the reasons for removal have
to be reported to both houses of Congress. And, in practice,
over the 30 years that we have had the Inspectors General Act,
many Inspectors General are career IGs, they have served in
several administrations, they often have served in more than
one agency.
We expect them to be impartial, objective, and, above all,
independent. Any Inspector General worth his salt must be
willing to make enemies of powerful people to do his job right.
As a result, the efforts, as Mr. Bilbray pointed out, are very
dedicated Inspectors General.
We have held the executive branch of Government accountable
to Congress and to the American people. Ideally, any
administration should welcome the role of Inspector General in
helping them manage the Federal Government, but we have seen an
effort to resist any accountability, whether by Congress, the
courts, or by Inspectors General. Unfortunately, the
appointment of Inspectors General has been both politicized and
dumbed down. The Inspectors General often have not met any
professional standards and have not seen themselves as
independent watchdogs, but they have seen themselves as part of
the management team of the agency.
Mr. Johnson, one of the witnesses today, will testify that
Inspectors General are selected or fired or selected by the
agency head. That is not how an independent Inspector General
should operate, and the result has been Inspectors General just
do not--or at least some--understand their proper role. It has
created enormous turmoil in their offices with their
professional staff who do know what the proper role is and are
very frustrated to see appointed Inspectors General is more
interested in protecting the agencies from embarrassment than
they are in calling the agency out and holding them accountable
when need be.
We have specifically investigated the Inspector General of
NASA, Moose Cobb. He was personally selected for the position
by NASA's former administrator, Sean O'Keefe, who decided he
did not like the previous Inspector General, the one that he
inherited when he became the administrator of NASA. He had his
chief of staff interview Mr. Cobb, who at that time was working
in the White House Counsel's office reporting to Alberto
Gonzales. Mr. Cobb had no apparent experience in auditing and
financial management and public administration, accounting,
investigations in aeronautics, or any other area that was
pertinent to his service as Inspector General of NASA, nor had
he ever managed an office.
Once at NASA, he was everyone's worst nightmare of a boss.
He was a tyrant to his own staff, and he was a sycophant to Mr.
O'Keefe and to the top management at NASA. He was openly
contemptuous of career NASA IG employees. He called them
bureaons. That was his shorthand for bureaucratic morons.
Mr. Chairman, I think most Americans, including me, have
widely admired, have admired NASA's employees as the right
stuff people. It was NASA's employees who put Americans on the
moon. It was NASA's employees who got Apollo 13 crew safely
back to Earth. But Mr. Cobb at NASA preferred the company of
the political appointees over that of his own staff or other
NASA employees. He frequently had lunch in the NASA cafeteria
with Mr. O'Keefe, with Mr. O'Keefe's chief of staff, the NASA
General Counsel--in other words, the political appointees. He
played golf, he had drinks with them, he called Mr. O'Keefe his
boss and worried that Mr. O'Keefe could fire him, as Mr.
O'Keefe had, in fact, fired his predecessor.
No NASA employee thinking of blowing the whistle on
anything that they saw happening at NASA would feel confident
that they could get to Mr. Cobb, tell him what was going on,
and believe that he would respect their confidentiality and use
the information that employee provided in the proper way.
Mr. Cobb mistrusted and routinely berated his own staff. He
discussed audits and investigations with Mr. O'Keefe and the
other management at NASA. He halted or edited audit findings to
suit NASA management. Experienced staff left in droves and
productivity cratered.
The President's Council on Integrity and Management
initially ignored employee complaints, but by 2006 the
complaints had reached a critical mass and they began an
investigation that took several months, and the Council found
that Mr. Cobb had abused his authority, that he had shown a
lack of independence from NASA officials, and said that
discipline up to and including removal should be imposed.
But the decision on what to do about Mr. Cobb was turned
over to the new administrator of NASA, creating another
appearance of a lack of independence, and now, even after
congressional hearings when it was very apparent that all of
the congressional leadership with oversight of NASA, committees
with oversight of NASA, have called upon the removal of Mr.
Cobb, Mr. Cobb remains in position. We cannot turn to the NASA
Inspector General to be our eyes and ears in that agency.
Mr. Chairman, the Inspector General Act was intended to
make our Government accountable to the American people.
Instead, Mr. Cobb at NASA, and perhaps others, have used their
positions as Inspectors General to shield the Bush
administration from political embarrassment instead of being an
independent watchdog, instead of holding that agency or other
agencies accountable to Congress and to the American people.
An Inspector General is not going to act as a tough,
independent watchdog if they are hired, fired, and disciplined
by the agency head, and Inspectors General have to be selected
for their professional qualifications, not their political
loyalty.
In the early years of the Inspector General Act, a
committee of Inspectors General reviewed the prospective
Inspectors General for their qualifications. Mr. Cobb almost
certainly would not have survived a review like that. Why
should that practice not be instituted again?
Something here has to give. I have some reservation about
Mr. Cooper's bill, the legislation, but I certainly applaud him
for raising this issue and beginning what I think needs to be a
debate within Congress.
I look forward to working, Mr. Chairman, with you and with
your subcommittee and staff on legislation.
Mr. Chairman, I will present later, if the Chair allows, a
more detailed analysis of Mr. Cooper's proposed legislation.
[The prepared statement of Hon. Brad Miller follows:]
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Mr. Towns. Let me just thank all of you for your opening
statements. I think that we do have one thing in common: we all
feel that something needs to happen in a positive way in order
to move forward. I think we all agree on that. As exactly what
it is, we may not agree on that, but I think that is the reason
why we have these hearings, that is the reason why we bring the
experts in to talk to us, so that we can come up with a way and
method to be able to try and resolve it.
I want to thank you again for your opening statements.
Let me say this: it is a longstanding policy of this
committee that we swear our witnesses in.
[Witnesses sworn.]
Mr. Towns. Let the record reflect that they all answered in
the affirmative.
Let me introduce the panel.
Clay Johnson is the Deputy Director for Management at the
Office of Management and Budget. He served as Chair of the
President's Executive Council on Integrity and Efficiency, the
coordinating body for Federal Inspectors General.
Phyllis Fong has served as the Inspector General for the
Department of Agriculture since December 2002. Prior to that
she was the IG at the Small Business Administration. Her career
in Executive-level positions in the Federal Inspector General
community spans 19 years. She looks young, but she has been
around. Ms. Fong is Chair of the Legislation Committee of the
PCIE.
Christine Boesz assumed the duty of Inspector General of
the National Science Foundation in January 2000. She represents
agency-appointed IGs as the Vice Chair of the Executive Council
for Integrity and Efficiency.
Your entire statement is in the record, and I ask that each
of you summarize within 5 minutes. The yellow light means your
time is almost up, and the red light means your time is up.
I would like to start with you, Mr. Johnson. Will you
proceed?
STATEMENTS OF CLAY JOHNSON, DEPUTY DIRECTOR FOR MANAGEMENT,
OFFICE OF MANAGEMENT AND BUDGET, EXECUTIVE OFFICE OF THE
PRESIDENT, AND CHAIR, PRESIDENT'S COUNCIL ON INTEGRITY AND
EFFICIENCY AND EXECUTIVE COUNCIL ON INTEGRITY AND EFFICIENCY;
PHYLLIS K. FONG, INSPECTOR GENERAL, U.S. DEPARTMENT OF
AGRICULTURE, AND CHAIR, LEGISLATION COMMITTEE, PRESIDENT'S
COUNCIL ON INTEGRITY AND EFFICIENCY; AND CHRISTINE C. BOESZ,
INSPECTOR GENERAL, NATIONAL SCIENCE FOUNDATION, AND VICE CHAIR,
EXECUTIVE COUNCIL ON INTEGRITY AND EFFICIENCY
STATEMENT OF CLAY JOHNSON
Mr. Johnson. Mr. Chairman, Ranking Member Bilbray, Mr.
Cooper, and Mr. Miller, thank you for having me here.
After those opening comments, I can tell this hearing is
going to be a little bit more interesting than I thought,
because, Mr. Miller, you have not only brought into question my
oversight of the Inspector General community, you have brought
into question my performance as the head of Presidential
personnel for 2 years. I can tell you your assertion about how
IGs, how any political appointee, is selected is totally wrong,
so I look forward to the conversation here and whenever else
you want to continue it.
The comment was made that IGs are Congress' eye in the sky.
More importantly, first of all, you have your own eye in the
sky, GAO. More importantly, I believe, than your eye in the
sky, the IGs are the executive branch's eye in the sky.
Federal agency leadership wants their agencies to work
really well. No head of any agency or department wants their
agency to perform poorly, so IGs are critical in an agency
head's ability for their agency to perform well. IGs identify
things that need to be fixed. Oversight, transparency
identifies things that need to be fixed. So IGs and agency
heads share the same goal: they are to work together. It is not
true, as some Members of Congress have suggested, that IGs are
best when they are junkyard dogs and they are the avowed enemy
of the agency head.
I don't know of any highly functioning, effective IG in the
Federal Government, past or present, who has that modus
operandi that is an effective IG. I have issued in my written
remarks the one-page document that the IG leadership and I
developed in 2004, which is our view of the proper relationship
that an agency head and an IG ought to have. There is no
junkyard dog or enemy component in that.
I do not believe the assertion that the IGs have been
dumbed down. I agree totally with Chairman Towns that the
volume and the quality of the work done by IGs today is superb.
It is outstanding, by any measure, and it is as high as it has
ever been.
I have heard, with all the assertions about how independent
or dependent IGs are, I have never heard any reference to
result to a quantification of their performance that suggests
that the quality or quantity of the IG's work is any less than
it has been or is anything short of what it can be.
I believe that a lot of the assertions that the IG
community needs to be fixed are based on philosophical
sentiments as opposed to any kind of tangible evidence that
there is a real problem to be fixed.
I think it is very important to recognize that IGs and
agency heads share the same goal. They want the agencies to
work; therefore, they are to work together. They are not to
work in opposition to cause their agencies to work effectively
together. But it is also very important that IGs be very
independent. What is supposed to be independent is their
findings. Their findings are supposed to be based entirely on
the facts, not on any kind of political persuasion.
I think it is very important also to recognize that the
proper relationship to be achieved by an agency head and an IG
is something that needs to be worked at on a daily basis. It is
not something that is legislated or created by fiat.
I also believe it is important to recognize that IGs do
need to be held accountable for the quantity and quality of
their work. As a result of these feelings, I believe the
following: I believe that setting terms for IGs and specific
reasons for dismissal are bad ideas. It is measures such as
these that work against an IG being held accountable for the
quality and quantity of their work.
I believe, as a result of what I just stated, I believe it
is important that budget requests from an IG not be separate
from the agency submission. I do believe it needs to be clear
in the agency's submission what amount is being requested for
the IG and how that compares to past performance, but I do not
believe it needs to be separate, because it works against the
agency head and the IG working together for the success of the
agency.
I believe it is very important to fix IG pay. There are
parts about IG pay that do not work. In fact, a lot of them are
SES, and SES can only get raises if they are evaluated, but who
can evaluate an IG is a real problem.
I am not sure that your bill, Mr. Cooper, is the answer. I
don't know what it is, but I look forward to working with you
on that and other aspects of it.
Finally, I believe it is very important that the Integrity
Committee process be reviewed. I think there are some rights
that IGs have that they don't need and have that they don't
have in that process, and we need to make sure that is the best
investigation process that it can be, because is it a very
important process.
With those remarks, I look forward to your questions after
the other opening remarks.
Thank you.
[The prepared statement of Mr. Johnson follows:]
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Mr. Towns. Thank you very much, Mr. Johnson.
Ms. Fong.
STATEMENT OF PHYLLIS K. FONG
Ms. Fong. Thank you, Mr. Chairman, Ranking Member Bilbray,
Mr. Cooper, and Mr. Miller. I am very, very pleased to be here
today to talk about the issues of accountability, independence,
and the Cooper bill.
As you mentioned in your very kind introduction of me, I
have been privileged to have received an appointment from both
President Bush and President Clinton, and truly am what I
consider to be a career IG employee.
In addition to my service as an IG, as you mentioned, I am
the Chair of the PCIE Legislation Committee, and I should just
note that the committee's job is to serve as the community's
liaison with Congress on issues dealing with legislation. What
we try to do in the committee is to build consensus, to the
extent that we can, on issues that affect the IG community, as
a whole.
Now, that is not always possible because different IGs have
different experiences and situations, and so unanimity may not
always be possible, but I will say that, with respect to the
Cooper bill, there is widespread support in the community for
many, many of the provisions in the bill, and we are very, very
grateful to Mr. Cooper for working with us over these years to
get this legislation developed.
As you requested, my testimony today will focus on issues
of independence and accountability. We believe several of the
bill's provisions are very effective at addressing these
issues. In particular, the provision in the bill that would
codify a council of the IGs, we believe that would enhance
independence and coordination within the community. It would
also codify the workings of the Integrity Committee, which we
believe to be a very important byproduct.
In addition, the bill contains provisions regarding terms
of office and removal for cause, which we believe strikes
directly to the heart of independence of IGs, and also would
deal with certain pay issues for the DFE IGs.
So, in closing, on behalf of the Legislation Committee, I
would like to express my very deep appreciation to all of you
for your work on this, and we look forward to answering your
questions.
[The prepared statement of Ms. Fong follows:]
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Mr. Towns. Thank you very much, Ms. Fong.
Dr. Boesz.
STATEMENT OF CHRISTINE C. BOESZ
Ms. Boesz. Thank you, Mr. Chairman and Ranking Member
Bilbray and Mr. Cooper and Mr. Miller. I am delighted to be
here today.
As you mentioned in my introduction, I not only am an IG
but also serve as the Chair of the ECIE, and I wanted to be
sure that you understand that this is a group of 33 agencies
with very diverse missions and operations. Some have very high
public profiles, and some are smaller but still very important
agencies.
Although I believe my views are shared by many of the ECIE
IGs, today I will speak for myself and will indicate where I
think there is broader support.
My testimony focuses on the provisions of H.R. 928. I offer
the following observations: First, H.R. 928 proposes to
establish 7 year terms for all IGs and the specific causes that
would lead for removal of an IG. It is unclear to me whether
this proposal would enhance ID independence or instead produce
unintended consequences. Because ECIE IGs are generally career
Federal employees who serve in positions with Civil Service
status and corresponding protections, one unintended
consequence may be that strong candidates for IG positions
would be dissuaded from exchanging a permanent position for a
term appointment.
ECIE IGs are also subject for removal for cause currently.
The 10-year removal of any IG are sensitive matters, and any
changes to the law need to be carefully considered to avoid
impairing the current IG roles or making it undesirable for
those who should serve as IGs.
In short, on this matter the devil is in the details.
The proposal to authorize IGs to submit budgets directly to
OMB is needed. It removes the risk of an agency inappropriately
influencing an IG and it provides transparency to the budget
process. I and a majority of the ECIE IGs support this.
The proposal for a unified IG council that has its own
appropriation is also desirable. We support it because we
believe it would help with our training.
The proposal to require that IGs be classified for pay and
other purposes at the same level as other senior staff
reporting directly to the agency head is critical within the
ECIE community. In a recent survey, we found that some ECIE IGs
had a lower grade level than other direct report executives and
are sometimes paid less. Not surprisingly, the ECIE IGs
strongly support pay parity and equity for all IGs.
H.R. 928 also would allow for ECIE IGs to apply to the
Department of Justice for law enforcement authority, ending the
inefficient process of reviewing such authority on a case-by-
case basis. I and the other ECIE IG strongly support this
provision.
Finally, I would mention that H.R. 928 would amend the
Program Fraud Civil Remedy Act to include the ECIE IGs and
agencies, thereby providing an effective tool to address claims
with dollar amounts less than $150,000. This amendment has been
a high priority for the ECIE agencies and IGs for many years
now.
I also want to note that within the ECIE we have three
legislative branch IGs. Their circumstances are a little bit
different, and they mentioned to me that they would like to
speak directly to you about their specific issues.
Mr. Chairman, this concludes my testimony. I again thank
you and the members of the subcommittee for conducting this
hearing and giving your time and attention to these very, very
important matters.
[The prepared statement of Ms. Boesz follows:]
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Mr. Towns. Thank you very much.
Let me thank all of you for your testimonies.
Let me begin with you, Ms. Fong. What is it in the Cooper
bill that you dislike?
Ms. Fong. Well, we have looked at the bill. As I mentioned,
it is not always easy to have a unanimous view in the IG
community, and so on a number of provisions there are different
views as to whether the provision is the best that it could be.
Certainly, one of the issues that has come up has been a issue
of IG pay. The Cooper bill is very good at addressing the DFE
IG situation, does not address the PAS IG situation, so we
would want to work with the committee on that provision.
There may also be a few technical amendments that we would
want to offer with respect to some of the language. I think Dr.
Boesz has raised a very good issue about the legislative branch
IGs, as well. That needs to be considered.
Mr. Towns. Thank you. Thank you very much.
Mr. Johnson, you know, there is criticism out there, the
same as with the education system. They are saying that you
have a principal of the school and a lot of bad things are
going on in the school, and the principal will not report it
because it makes him look like he is a bad principal. So when
it comes to the IG, you know, and agency, many people are
saying that is what is going on, that there is this cozy
relationship, that the IG does not, you know, report everything
because it also makes the agency, itself, look bad.
What are your views? Is this accurate?
Mr. Johnson. No, sir, I don't believe that it is accurate
at all. I believe that, in fact, there is more transparency
about what doesn't work in the Federal Government today than
there ever has been before. First of all, the numbers produced
by the IG efforts are as strong and as positive and as
professionally done as has ever been the case. There is more
information now prompted by and developed by this
administration, as long as we are talking about this
administration, about what programs work and don't work in the
Federal Government.
There is more information about what Federal property we
need and don't need. There is more information about where our
payments are proper and improper and what we are doing to fix
them. There is more information about what management practices
we have in what agencies and where we are deficient in our
ability to be good stewards of the taxpayers' money. So there
is more information, there is more public declaration today
than ever before, including as a result of the IGs work, on
what doesn't work, what does work, and what we need to be doing
to make everything work better.
So I believe that there is no indication that there is any
kind of pressure to hide what doesn't work. I think it is just
the opposite. There has been more effort to declare what
doesn't work so there can be more pressure, starting with
Congress, more pressure exerted by Congress on the executive
branch to cause things to work better.
We have over 1,000 programs in the Federal Government, and
yet there is very little pressure from Congress to cause those
programs to work better. There is a tremendous amount of
attention paid to what the policy ought to be and how much
money ought to be spent, but there is very little attention--
and this is not only my opinion, this is the opinion of David
Walker and former Chairman Dick Armey--that the executive
branch is significantly more focused on program performance
than the congressional branch, legislative branch.
And so I think there is more attention than ever before on
how things work and how to make it work better, and so I just
don't agree with the premise at all that there is an effort to
hide things that don't work. It is just the opposite.
Mr. Towns. All right. Let me just go right down the line.
How do you feel about performance evaluation in terms of tying
pay to performance evaluations? Let me go right down the line,
starting with you, Dr. Boesz, and come right down the line.
Ms. Boesz. Tying performance of the IG?
Mr. Towns. Yes.
Ms. Boesz. Well, my situation, my performance, I do get a
review based on the performance of the office, and it rolls up.
We have a strategic plan, and it rolls up all the way from the
auditors up through management to me to the National Science
Board, who I work for, and so we are evaluated and expected to
meet certain kinds of criteria. Now, we set them, but we also
then meet them. So we don't think it is a bad concept.
Mr. Towns. Ms. Fong.
Ms. Fong. As a PAS IG we have a slightly different
situation. In principle, I support performance-based pay. I
think it is very important to hold people accountable, and
certainly within our organization we hold our employees
accountable for meeting their goals and objectives. When it
comes to IGs, we get into a little more complex situation,
because the question is who would make the decision as to
whether an IG is doing a good job, and the issue of
independence and potential conflicts of interest.
If the agency head is the one who appraises the IG, there
could be a challenge to whether that appraisal is impartial or
justified. There could be charges that the IG either did or
didn't do work in order to get a good rating or a bonus or
whatever, and so that raises some very difficult issues for IGs
who are Presidential appointees.
At this stage of the game, as a PAS IG I am not rated or
appraised. I am accountable for the performance of my office
and ultimately accountable to the President.
Mr. Towns. All right.
Mr. Johnson.
Mr. Johnson. I think there are two parts about performance
evaluation. One, giving whoever is being reviewed feedback
about how they are doing can be helpful to them to learn how to
be better. I think it is very difficult to have that feedback
come from the head of the agency, as has been suggested. But I
would look forward to working with the IGs to figure out how
they can get feedback from peers or some other means to help
them continually improve their performance.
I think, therefore, it makes it very hard for an SES to get
pay increases based on performance evaluation, as is the case
with SESers, because there is no one to do a performance
evaluation without violating this independence issue, so we
have to fix that.
It has been suggested that the raises be the average of the
raises given to everybody. I don't know what it is, but we need
to fix that, because it is not fair, it is not right, and it is
a big part of the issues raised by Mr. Cooper that I think need
to be addressed in some piece of legislation.
Mr. Towns. Right. Thank you very much.
I yield to Mr. Cooper.
Mr. Cooper. Thank you so much, Mr. Chairman. Again, I
appreciate your holding this hearing. All we are trying to do
is make Government work, regardless of the administration.
There should be no politics in this bill. We are just trying to
get value for taxpayer dollars.
I appreciate the testimony of each of the witnesses. I
don't want to dwell on the negative and I don't want to be
simplistic and dwell on the positive, either, but one of the
complaints has been that people are uncertain about dealing
with a fixed term for the IG. That would be a new experience
for many of the IGs, not all. How would that mesh with
administrations? What term do you pick for a term of office? Of
course, IGs could be reappointed and only removed under defined
circumstances, but I think we all share the same goals. It is a
question of the best way to reach that goal.
An alternative proposal has been to not have a fixed term
of office, but to have a 30 day advance notice to Congress in
the event that an IG is dismissed. Of course, that gets tricky
meshing with the congressional calendar. Is that 30 legislative
days? Sometimes we are not here during August or major
holidays. Every proposal has its own flaws, but I am curious.
Would that sit better with OMB or with the two different
varieties of IGs than a fixed term in office?
Mr. Johnson. Yes. I, myself, I would recommend that the
administration oppose a term. Of course, the President doesn't
want any restrictions on his ability to appoint. That is just a
generic statement. But I think a term and specific reasons
limit the ability to hold an IG accountable.
For instance, Mr. Miller, you were talking about Moose
Cobb. None of the things that you have accused Moose of or
Moose has been accused of are on this list, which is kind of an
interesting, ironic thing. But I think some kind of a
notification, I don't know whether it is 30 days, because
Congress has a way of, if they are dissatisfied with that,
letting that satisfaction be known to the executive branch, but
something like that might be appropriate. But I am definitely
opposed to and recommend that we oppose a term and specific
reasons for dismissal.
Mr. Cooper. But then you would be wholeheartedly in support
of the bill, right?
Mr. Johnson. I think some legislation is called for to deal
with some of these things, but I think I am opposed to some of
them.
Mr. Cooper. Ms. Fong, Dr. Boesz, would you have a reaction
to that?
Ms. Fong. I think we are struggling with the very heart of
the nature of the IG role, which is independence, and how to
best ensure that. The sense that I have from my colleagues in
the community is that it would be very helpful to have some
kind of protection so that IGs, when they take a position, have
the understanding that they will not be removed tomorrow for a
reason that may not be apparent to them, and so, in trying to
develop proposals, we looked at terms, we looked at removal for
cause. I think your idea about advanced notice to Congress so
that there would be an opportunity for oversight is also
something that is worth exploring.
The bottom line is that, as IGs, when we operate within our
agencies we need the agency managers to see us and to say, that
is the IG I am dealing with today, that is the IG that I expect
to be dealing with tomorrow, regardless of whether they take on
difficult issues. So how do we best protect that?
Mr. Cooper. I agree with you.
Dr. Boesz.
Ms. Boesz. I would agree very much with that last
statement. The IG needs some constant consistency throughout
their tenure, whatever it may be.
The 30 day advance notice to Congress, in my personal view,
is a much better approach than a term limit; however, we still
need to think through how that affects someone who is a Federal
employee with specific rights, rather than a Presidential
appointee.
Mr. Cooper. I see my time is expiring. I want everyone to
know I am very sensitive to your concerns, and I hope that we
can address them. I am just thankful that finally legislation
may be moving, because we have had this bill now for 4 or 5
years. It has been a long wait, and it is about time that
Congress responded to some of these problems.
I want to pay particular tribute to Cicily Simpson, who is
helping me with the bill now, and also to Ann Kim, her
predecessor, because we couldn't have done this work without
them.
Thank you, Mr. Chairman.
Mr. Johnson. May I make one comment? I am also not aware
that you all feel that an IG has been removed unnecessarily.
Aren't we talking about a possible problem, or is your feeling
that, in fact, we have had instances of unwarranted removal?
Mr. Cooper. The effort was for professionalization, and we
have to anticipate all future circumstances. No, I am not
blaming anyone. We just want IG's stature to be enhanced so
that they can do an even better job of protecting taxpayers.
That is all we are interested in.
Mr. Towns. Congressman Duncan from Tennessee.
Mr. Duncan. Well, thank you very much, Mr. Chairman. I
won't have any questions, since I just got here. I will say
that I commend my colleague from Tennessee, Mr. Cooper, for
introducing this bill. In the 106th Congress I introduced a
bill to make all of the Inspectors General Presidential
appointees. At any rate, we later ended up passing a bill to
make the Inspector General for TVA an independent.
I do have some questions as to how these terms are going to
be defined. The one that leaped out to me was inefficiency. I
mean, we could remove half the people in the Federal Government
if we are going to talk about inefficiency. But at any rate,
there are some of these things that probably need to be defined
in a little more detail, but I think that the goal of the
legislation is good and I think it is something that I would
try to support.
Thank you very much.
Mr. Towns. Thank you very much. That is another bill. That
is another bill.
Mr. Miller.
Mr. Miller. Thank you, Mr. Chairman.
Mr. Johnson, I want to pause and celebrate a point of
agreement. I said in my opening statement that I applaud Mr.
Cooper for raising the issue, but I do agree with you that the
list of reasons for which Inspectors General can be removed is
too narrow.
Mr. Bilbray said in his opening remarks that the Inspector
General was the eye in the sky, was his term, and you
apparently disagreed in part with that and said that the GAO
was really more the Congress' watchdog. Do you agree with this
statement about the role of Inspectors General: ``Inspectors
General report both to the head of their respective agencies
and to the Congress. This dual reporting responsibility is the
framework within which Inspectors General perform their
functions. Unique in Government, dual reporting is the
legislative safety net that protects the Inspectors General
independence and objectivity.''
Mr. Johnson. I agree with that. What I said, though, was
that it is more than your Congress' eye in the sky, it is the
executive branch's eye in the sky. You have your own----
Mr. Miller. Right.
Mr. Johnson [continuing]. And then you also have the IGs.
You have two eyes in the sky. We have one, which is the IGs.
And so it is not just an asset for Congress; it is a huge asset
for agency heads and the executive branch.
Mr. Miller. Right. This, of course, as I hope you know,
comes from your own agency's standards.
Mr. Johnson. Yes.
Mr. Miller. You would agree, then, that it is a problem
that Congress does not have confidence in the objectivity and
independence of an Inspector General?
Mr. Johnson. Yes, that would be a problem. Yes.
Mr. Miller. OK. It would be a problem with his doing his
role as contemplated by the statute and by the standards of
conduct.
Mr. Johnson. There are also opportunities for differences
of opinion, obviously.
Mr. Miller. OK. And that independence is not just a matter
of whatever the reality is, but appearance matters, as well.
Independence is a critical element of objectivity. Without
independence both in fact and in appearance, objectivity is
impaired. Do you agree that independence is important?
Mr. Johnson. Yes. Right.
Mr. Miller. With respect to Mr. Cobb, again, your own
office's report said that he routinely had lunch weekly with
Mr. O'Keefe, the chief of staff, the Council. It was usually in
the NASA employees' cafeteria; that Mr. Cobb frequently, or
occasionally, at least, played golf with Mr. O'Keefe, he went
up to Mr. O'Keefe's office for drinks, he referred to Mr.
O'Keefe as his boss. For an employee of NASA who wanted to blow
the whistle or who saw something going on that he did not like
and wanted to find someone to tell about it, would that
employee have confidence in Mr. Cobb that Mr. Cobb will handle
the information in the proper way and would protect the
confidentiality of that employee's reporting it?
Mr. Johnson. I don't know what would affect that employee's
feelings about Mr. Cobb's independence. Let me address this a
little bit indirectly. I know two very senior IGs, very senior
IGs. One would think nothing of going to the agency head's
Christmas dinner at the agency head's house. The other one
wouldn't do it with a gun held to his head. They are both
outstanding IGs. They have very different views about what
appearance is proper and what is improper.
I would suggest to you in a very small way that says there
is no correlation. I defy anybody to demonstrate any
correlation between whether somebody has lunch with the agency
head and the quality of the IG's work. I have never heard you
say and I never heard the Integrity Committee say that the
quantification of the NASA IG's work is in question.
Mr. Miller. Actually, Mr. Johnson, it is. The evidence is
that the number of audits produced by Mr. Cobb's office has
fallen to half what it was under his predecessors, so yes, the
quantity----
Mr. Johnson. Is the dollar value of them halved?
Mr. Miller. Well, I didn't come prepared to cross-examine
you on the facts.
Mr. Johnson. It is a good thing, because I don't know the
facts, either, but I just heard you specify that number, which
we are in the dollar business, not the number of audit
business.
Mr. Miller. My understanding is it has fallen to half.
Ms. Fong, you are in Inspector General. What is your view
of that kind of level of a visible relationship to employees
between the Inspector General and the top political leadership
of the department? Does that create a problem in your mind?
Ms. Fong. It is probably one of the most difficult issues
that IGs face, exactly what is the proper kind of relationship
with an agency head. I think each IG has to work it out for
himself or herself.
I can speak to you about my own personal experience.
Personally, I am most comfortable when I have an arm's length
relationship with my agency head. It is not to say it is not
cordial, that we don't have a very good, constructive working
relationship and I can brief him at any time on issues, but for
me an arm's length relationship ensures that anything that
comes up that I need to look at, I am able to look at without a
sense of my independence being on the table.
Mr. Miller. OK. And how about the importance of the
appearance to others, either employees or to Congress?
Ms. Fong. We certainly are always very aware of
appearances. At any time any of us can have allegations filed
about our conduct, and so I think we are all very sensitive to
the fact that we need to appear impartial and, of course,
actually be impartial, as well.
Mr. Miller. OK.
Mr. Johnson. One thing, we are talking about Mr. Cobb, this
and that, the Integrity Committee, which is the official
investigating entity that produced the report, which is made up
of an FBI senior person, the head of the Office of Government
Ethics, Office of Special Counsel, Office of Government Ethics,
and three IGs found Mr. Cobb was--there was the appearance of
lack of independence, appearance, but no suggestion that
anything about his findings were anything but independent, and
that there was abuse of authority.
There were 27-odd other allegations that were made, some of
which you referenced, in terms of his behavior, which he was
found not to be ``guilty'' of. And I think Administrator
Griffin, as he has indicated, is in the process of addressing
that. There has been no accusation that he's the problem with
dependence, lack of appearance of independence from Mr.
Griffin.
So he remains in the office there, because the feeling of
the administration, and in consultation with Mr. Griffin, is
that he can do a very good job as the Inspector General at
NASA.
Mr. Miller. Mr. Chairman, I don't want to abuse your
generosity, but I would like to pursue that point for just a
minute more, if I could.
Mr. Towns. You can.
Mr. Miller. Mr. Johnson, the PCIE report said, among other
things, concluded that Mr. Johnson would confer with the top
management--I am sorry, Mr. Cobb would confer with the top
management at NASA in the design of audits, and then would send
to them draft copies of findings of audit reports before it was
issued for their reaction and audit it, and sat on some
findings in response to their concerns. That strikes me as more
than an appearance. That strikes me as the reality of a lack of
independence. Does that not strike you as something more
troubling than unseemly appearance?
Mr. Johnson. It doesn't. I am not an IG. Dr. Boesz and Ms.
Fong are IGs. It is standard practice before a report is issued
that they be sent to agency leadership for official comment,
and then it is issued with agency's comment. I don't know if
what you are referring to is that process or something other
than that process.
Mr. Miller. Actually, I think I did not speak correctly. It
was before they were even a draft. It was before the audits.
Mr. Johnson. Three IGs, the Criminal Investigation at FBI,
Government Ethics, Special Counsel looked at that and found
that not to be problematic, so I just--you ought to ask them
that question.
Mr. Towns. I want to followup, Mr. Johnson.
I understand there is a process in place for investigating
complaints against IGs.
Mr. Johnson. Yes.
Mr. Towns. The Integrity Committee of the PCIE----
Mr. Johnson. Yes.
Mr. Towns [continuing]. Works with another IG's office to
conduct an investigation. My question is this: what happens
after the Integrity Committee reports back? They send a report
to the Chair of the PCIE, Mr. Johnson, and what happens after
it lands on your desk?
Mr. Johnson. I have had some opportunity to understand the
answer to this question in the last couple of months. Here is
my understanding of the answer to that question: they do their
report. It comes to me as the Chair of the PCIE.
Mr. Towns. Right.
Mr. Johnson. Because these are with the PCIE, they are
Presidential appointees. If the identified behavior appears to
warrant consideration by the White House for dismissal, I would
bring that up with the White House.
Mr. Towns. Do they vote on it? At PCIE do you vote on it?
Mr. Johnson. No. PCIE is not involved in this.
Mr. Towns. All right.
Mr. Johnson. There is an Integrity Committee. We were
talking about the report by the PCIE. There is an Integrity
Committee that is under the umbrella of the PCIE. The people
that produce the report are, the chairman is somebody
designated by the Director of FBI, the Office of Special
Counsel, the Office of Government Ethics, and three IGs, so it
is a group of six. They produce a report.
Mr. Towns. But is there any voting on this, or is it the
President's decision?
Mr. Johnson. I don't know how it works. The six of them
produce this report.
Mr. Towns. Yes.
Mr. Johnson. With findings. They say, here's all the
allegations, here's what we found to be of substance. It comes
to me. If there is suggestion that this ought to go straight to
the White House, I take it straight to the White House. If not,
it would go to the head of the agency for review and
consideration. Then the head of the agency determines whether
they have confidence in the IG, whether they want to recommend
to the President that the IG be removed, whether there be
sanctions, there be some change in the organization, but it
goes to the agency head.
That then goes back to the Integrity Committee through me.
I get it from one, I hand it to the other. It goes back to the
Integrity Committee. Then the Integrity Committee gets it,
finds out what the head of the agency wants to do, and if they
agree that is it. If they want to comment on it, think it is
too much or too little, they issue another report that says
whatever they want to say, and then it is sent. So that is the
basic process.
Mr. Towns. Right. So it is up to you, if you want to move
it on, you move it on; if you don't----
Mr. Johnson. No.
Mr. Towns. No?
Mr. Johnson. No. It comes to me from the Integrity
Committee.
Mr. Towns. Yes.
Mr. Johnson. If the behavior is found to be egregious
enough that I think possible dismissal, removal by the
President ought to be the only question, then I would take it
directly to the White House. If it is, in my estimation, less
than that, then it would go to the agency head. This is per an
Executive order that President Clinton signed in 1994 or 1997
or something.
Mr. Towns. In other words, you have to send it somewhere?
Mr. Johnson. I have to send it somewhere, yes. It goes to
the agency head, and because they share the goal of the success
of NASA, in Mr. Cobb's case, and so they decide whether he
believes NASA can have a well-functioning IG operation, given
this information, or not. And they would come back and go in
writing and come back to the Integrity Committee through me
with what their response to the findings of the Integrity
Committee are.
Mr. Towns. All right. Thank you.
Mr. Johnson. If it sounds convoluted, it is because it is a
little convoluted.
Mr. Towns. Yes, I agree with that, but it seems like to me
you have a lot of power, though. It seems to me you have a lot
of power in the process. Yes.
Mr. Johnson. I am more of a messenger. I really don't have
any power in the Integrity Committee, itself, on purpose. It is
set up that way. It is the Inspector General, the investigative
community investigating its own.
Mr. Towns. Yes. But I think the reason I say you have a lot
of power, I heard the words ``pass on to the White House.''
Mr. Johnson. That is if in my estimation the findings are
such that----
Mr. Towns. To me that is power.
Mr. Johnson. Well, it is.
Mr. Towns. I am not going to belabor the point here. But,
anyway, you get the point.
Dr. Boesz, does your evaluation affect your pay increase or
your bonus?
Ms. Boesz. The evaluation? I am an SES person, so yes, I am
eligible for a bonus and for pay for performance under the way
the agency works under the new Civil Service reform. It is set
up so that, yes, if I don't perform, don't get an evaluation, I
wouldn't get a raise.
Mr. Towns. Doesn't that make it hard for you to be
independent?
Ms. Boesz. No, not at all, sir. Not at all, because it is
all done on metrix. It is done on the performance of the
office. It is not done on my personal performance. It doesn't
bother. I don't feel at all conflicted there.
I should point out that I work for the National Science
Board. I don't work for the director of NSF. There is an arm's
length between me and management. The Board has oversight
responsibilities, and I think that metric makes a difference.
Many of the ECIE IGs do work for either boards or commissions,
and so we do have arm's length from management. I think that is
the key why it doesn't affect the independence ability.
Mr. Towns. All right. Thank you very much.
Any other questions from Members?
[No response.]
Mr. Towns. Let me thank all three of you for your
testimony. I am sure you will be hearing from us again. Thank
you very much. It was a pleasure.
I would like to welcome our second panel. As with the first
panel, it is our committee policy that we swear our witnesses
in.
[Witnesses sworn.]
Mr. Towns. Let the record reflect that they all responded
in the affirmative.
I will briefly introduce each witness.
Eleanor Hill--welcome to the committee--was with the
Department of Defense from 1995 to 1999. She was Staff Director
of the 9/11 Commission and the Senate Permanent Subcommittee on
Investigation, and is a former Federal prosecutor.
Ken Mead was Inspector General of the Department of
Transportation from 1997 to 2006. Prior to his service as an
IG, he served for 22 years at the Government Accountability
Office.
Nikki Tinsley was Inspector General of the Environmental
Protection Agency from 1998 to 2006. Prior to her appointment
she served as an auditor for the EPA, Department of Interior,
and Government Accountability Office.
Jeffrey Steinhoff is Managing Director of the Financial
Management and Assurance at the Government Accountability
Office. He has 38 years of Federal service, more than half of
them spent as a senior executive at GAO.
Fred Kaiser and Vanessa Burrows are the experts on IG
issues for the Congressional Research Service at Library of
Congress. Mr. Kaiser is a specialist in American national
government, and Ms. Burrows is a legislative attorney.
Your entire statement, for all of you, will be in the
record. I ask each witness to summarize their testimony within
the time we have allotted, which is 5 minutes. The yellow light
means your time is running down and the red light means your
time has run out, so we will start with you, Ms. Hill, and then
we will just go right down the line.
STATEMENTS OF ELEANOR J. HILL, FORMER INSPECTOR GENERAL, U.S.
DEPARTMENT OF DEFENSE; KENNETH M. MEAD, FORMER INSPECTOR
GENERAL, U.S. DEPARTMENT OF TRANSPORTATION; NIKKI L. TINSLEY,
FORMER INSPECTOR GENERAL, ENVIRONMENTAL PROTECTION AGENCY;
JEFFREY C. STEINHOFF, MANAGING DIRECTOR, FINANCIAL MANAGEMENT
AND ASSURANCE, GOVERNMENT ACCOUNTABILITY OFFICE; AND VANESSA
BURROWS, LEGISLATIVE ATTORNEY, CONGRESSIONAL RESEARCH SERVICE,
ACCOMPANIED BY FRED M. KAISER, SPECIALIST IN AMERICAN NATIONAL
GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE
STATEMENT OF ELEANOR J. HILL
Ms. Hill. Thank you, Mr. Chairman. Good afternoon, Mr.
Chairman and members of the subcommittee. Thank you for the
opportunity to discuss with you this afternoon the role that
IGs play in what I believe is the promotion of good Government
in the Federal system.
While I am now engaged in the private practice of law, I
did, as the chairman mentioned, have the opportunity to serve
as the IG for the Department of Defense. I also was extremely
privileged to really spend the bulk of my career in public
service, which also included serving as vice chair of the PCIE
from 1998 through 1999.
I am very happy to join both Ken Mead and Nikki Tinsley
here this afternoon. They were both friends and former
colleagues of mine during our years as IGs.
Your focus on independence and accountability is absolutely
on point, in my view, in terms of maintaining the credibility
and the effectiveness of the IGs as a community in the Federal
Government. Although the idea of Inspectors General has been
around really since the 17th century Europe in terms of
military Inspectors General, the idea of a truly independent IG
as we know them today are a relatively modern phenomenon, and
Congress gets credit for the idea with the IG Act of 1978. That
act went far beyond the traditional military Inspector General,
and the principal difference, in my view, is the whole concept
of independence.
I mentioned the military IGs, because during my term at
Defense at the Pentagon I had the opportunity to work with many
of them. Also, the DOD is unique. It is so large that it has a
number of other what we call administrative IGs at the various
Defense agencies. As the departmental Inspector General, I
worked with all of them on numerous occasions, and my work with
them really enforced for me the importance, the absolute
critical importance of independence to the statutory IGs.
I can tell you that on numerous occasions, for example,
military Inspectors General in the Department of Defense would
come to our office and ask us to conduct top-level,
particularly sensitive investigations because they, the
military IGs who did not have statutory independence and
operated within the chain of command, believed that they did
not have the independence needed to make their investigation
both actually be objective and appear to be objective within
the Department and to Congress and to the American public, for
that matter.
I also had numerous conversations with various
administrative IGs within the Department of Defense. This would
include Defense agencies like DIA, NSA, NRO. They served
without the benefit of statutory independence. They serve at
the pleasure of the directors of their agencies. And they also
would ask us to take on those kinds of investigations. They
recognized that in investigations of very senior officials or
in audits of programs that are dear to an agency head,
statutory independence was absolutely critical to both the
integrity of the inquiry and to the credibility of the findings
in the Department, on Capitol Hill, and with the American
Public.
I must tell you that I could not help but recall those
conversations last year when I read reports that oversight of
what is now termed the NSA terrorist surveillance program,
which I am sure you are familiar with, had been handled not by
the Department of Defense IG, who is independent, but rather by
the NSA IG, who has limited resources and no statutory
independence. In my view, that is exactly the kind of program
where the oversight should have been conducted from the very
beginning by the independent statutory IG.
Independence, more than anything else, goes to the very
heart of the IG missions. The statutory requirements--and you
are familiar with them--and the 7-day letter requirement, the
ban on Secretarial interference with IG work, etc., all taken
together in my view make the IG the most independent and the
most unfiltered voice in any Federal department under the
Secretary.
As an IG, I was very fortunate in that I never felt forced
to sacrifice or compromise my independence. The provisions in
the statute, however, are not foolproof, as one would expect.
There are other factors that do impact independence. In my
case, I would say there were several where I was very
fortunate. I worked with two Secretaries of Defense, two
Secretaries, Bill Cohen and Bill Perry, both of whom really
understood, appreciated, and accepted the role that an IG can
play in a constructive way in a Federal department.
I also had the benefit of becoming an IG only after I had
been schooled for many years in jobs where independent factor
of an investigation was really the norm. That is what I knew as
a professional. I had been a Federal prosecutor and I had been
a congressional investigator for years in a committee where
inquiries by investigators were very bipartisan.
Clearly, IGS must be comfortable with their independence.
They must fully understand its importance. They must be willing
to exercise it and they must be prepared to defend it, if
necessary.
Independence also, in my view, beyond what is in the
statute, depends on Congress. It depends on Congress remaining
attentive to IG findings and remaining engaged in exercising
its own oversight. For the concept to work, Congress has to be
an active player. Congress has to insist on thorough and
objective oversight from the IG, separate and apart from the
views of any department and any administration. When that
happens, the overwhelming incentive for any IG is to resist
attempts at politicization from either side. The best way to
succeed when answering to those two masters is to conduct
independent, professional, and fact-driven investigations.
H.R. 928, as you know, has several provisions, all of which
would add to statutory independent protections that already
exist. Because I believe so strongly in the need for
independence, I do support all of those changes.
I also want to say a few words about accountability.
Independence gives IGs power. When they have that power, they
have to expect to be held accountable and they have to be held
accountable. While we hope that all IGs take the high road, the
system has to be capable of addressing allegations of
misconduct. The public must be assured that those who enforce
high ethical standards on others are, themselves, held to the
same standards. There must be a clear and convincing answer to
the question: who is watching the watchdog?
The IG community--and I remember this from my years with
the PCIE--has wrestled for years with the idea and the question
of how to ensure accountability but not sacrifice independence.
The lack of clear legal authority, insufficient resources, and
recordkeeping problems hampered early efforts by the PCIE to
address the issue. Both IGs and OMB worked together to prompt a
March 1996 issuance of the Executive order which confirmed the
PCIE Integrity Committee's authority and process, which Mr.
Johnson spoke of earlier.
I can tell you there were still problems, in my memory,
with implementation after that Executive order. I remember at
least one occasion where I wanted an investigation where I had
allegations of serious misconduct by senior IG employees. I
went to the Integrity Committee, referred it to them. They
actually sent it back to me. I had to go back again and insist
on them taking the investigation, which they ultimately did. So
there were some bumps along the way in getting it started.
H.R. 928 certainly would codify the existence and the
authority of the Integrity Committee. I support that, not only
because it further clarifies the authority of the committee,
but also because it sends a clear message to the American
public and to the agencies and departments that the law will
ensure that IGs are held accountable.
In closing, I just would note that I have truthfully been
very dismayed by the reports in recent years of less
congressional oversight, coupled with reports of less
independence and less professionalism in the IG community. As
an investigator, I know better than to pre-judge the accuracy
of those reports without access to all the facts, so I do not
know to what extent those reports are true. But I can only tell
you that, for the good of the country, in my view, I hope they
are not.
The rigorous but always objective and fair exercise of the
congressional oversight power, bolstered by the work of the
independent and professional IG community, is in my mind
clearly the surest way to promote integrity, credibility, and
effectiveness in Government. The American people deserve and
quite rightly expect no less.
Thank you for the opportunity. I look forward to your
questions.
[The prepared statement of Ms. Hill follows:]
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Mr. Towns. Thank you very much.
Mr. Mead.
STATEMENT OF KENNETH M. MEAD
Mr. Mead. Thank you, Mr. Chairman. I am really thankful for
the invitation to testify. I appreciate the opportunity to work
with a number of you over the years, Mr. Cooper on various IG
issues; Mr. Duncan, I always consider him a leader in the
aviation world; Mr. Davis I remember well sitting in the Court
of Appeals courtroom up in Boston on a big dig hearing he was
chairing.
I served under two Presidents, Clinton and Bush, and
decided to step down after almost 9 years. That means I worked
for both Secretary Slater and Secretary Mineta. I have absolute
respect for them both. They had tremendous regard for IG
independence.
Before becoming IG, I worked in the GAO. I make note of
that not really so much as a biographical point, but as a way
of saying that I think GAO is an extraordinarily good source of
candidates to be IG. I spent 22 years there. It was a great
training ground. I think some of my core values were formed in
that institution.
I am also real proud of the DOT IG team for their
dedication to duty and continuing accomplishments.
Just on a personal note, I want to say something about the
IG job. You know, it is a real difficult job and it is
sometimes kind of lonely, but in my estimation it is among the
greatest rewards and honors of public trust that the Government
has to offer, just terrific opportunities to do good for the
taxpayers.
As far as the law is concerned, I believe that the bill,
H.R. 928, recognizes this, as well. I don't think the law is in
need of wholesale change. Just a couple context perspective
points on that: The essential design of the IG job is, as a
fellow named Paul Light, he worked for Senator Glenn. Some
people think Senator Glenn was one of the fathers of the IGs.
But Paul Light told me, when I was being vetted for the IG, he
says, Don't forget this: the job of the IG is to speak truth to
power. You won't find those words in the IG Act, but that is
really, when you add it all up, what we are supposed to be
doing. The IGs who use that principle as their compass will
best serve the taxpayer, the Congress, and the taxpayers.
You are going to have to do some painful and unpopular
things as IGs. Sometimes people won't want to have lunch with
you. But that just comes with the job.
Relationships with the Congress and the Secretary--the act
requires, as has already been pointed out, it has a dual
reporting obligation. You have to keep the Congress and the
Secretary fully and currently informed. That is not a
discretionary duty; it is a mandate. It is a requirement of
law. I think that single provision of law is the most important
strength of the IG act. It is a duty for which we all ought to
be held accountable.
But there is the powerful reinforcing corollary to this
that applies to both the Congress and the Secretary. For the
Congress, that corollary is the regularity and depth of
oversight of agency programs, the extent to which they pay
attention to the IGs work. For the Secretary, it is the value
that the Secretary attaches to oversight, regularity of access
by the IG to the Secretary, and also that the agency heads--
like in our case FAA, Highway, NHTSA, and so forth and so on.
There are ten of them, I think--they know that the Congress is
watching and that the Secretary is watching, and that there is
a demand for respect of the IG's findings.
I think that is one of the reasons why the DOT's IG's
office work is held in such high regard today. It is not just
because that work is quality; it is because Congress pays
attention to it and the Secretary does, too.
A couple of points on relationship with the Secretary. I
think it has to be one built on mutual respect and trust. I
think the IG has to be independent, but you don't want the IG
blind-siding the Secretary. When the Secretary hears about an
IG finding on the nightly news or reads about it in the
Washington Post for the first time, in my view the IG has
probably dropped the ball. I don't believe that should be
happening.
Also, the IG can't just take the independence to an
extreme. If you do, you are going to be marginalized. The IG
needs to make recommendations, and workable recommendations,
not just drop it in the Secretary's lap, walk away, and come
back a couple years later and say, My god, the problems are
still there. They may be there anyway.
Term of office--I think it has already mentioned, 928
establishes the renewable 7 year office for removal only for a
specific cause. In my own case, I don't think the term of
office or removal for cause would have enhanced my independence
or affected us as IG. It would have detracted from it, either.
But from what I have seen--and I used to have Phyllis Fong's
position as legislative committee chair--in talking with
colleagues, I think the idea of giving advance notice to the
Congress in writing and a statement of reasons is a good idea.
Mr. Duncan mentioned, though, I would be careful about
enumerating all these things. You get into inefficiency, and
inefficiency is not an intuitively self-defining term. So, on
balance, I think that might be the best approach.
I think also, for the IGs that are not appointed by the
President, that would be a good approach, too.
Budget? Submission of budget, I think Mr. Cooper's bill has
it about right. The IG's original budget request ought to be
submitted along with the President's final recommended budget.
For example, when the budget outlays for advocacy or highways
increase sharply, you should expect, the Secretary should
expect, the taxpayer probably should expect that the IG is
going to be expanding audit coverage. If the IG can't expand
audit coverage because the President, for that matter, isn't
going to recommend enough resources, there ought to be some
memorialization of that and the Congress ought to be aware that
is going to be one consequence.
IG candidate pool and IG pay? I think it has been made
pretty clear today that this is a problem. I don't believe that
the IG Act's statement of qualifications needs agency change. I
think the acid test is in the nomination and conformation
process and learning a person's core values.
But on the issue of pay, you have a problem. I am concerned
about the adequacy of IG pay, particularly if you want the IG
to stay on board for more than the average tenure of the Senior
executive branch official. If Mr. Cooper's bill becomes law,
you have a minimum of 7 years. That is a lot longer than the
average executive branch senior legislation person.
I am not going to belabor the very significant pay
disparities, but I can tell you that I am the victim of it. At
the 6 or 7 year point, a new law took effect. I was career SES,
and all of the sudden my pay was essentially frozen. My entire
senior staff was getting paid substantially more than me and,
while I don't think bonuses are appropriate for IGs, I do think
you have to do something about this.
The problem exists also with the people that weren't career
SES. You expect IGs to come in and spend 7 years on the job,
executive level four with no possibility of promotion. That is
just one step from the bottom. This goes from, I think,
executive level one through five.
Codification of the IG Council, I think H.R. 928 has it
about right here, too. I would encourage you, though, before
just reenacting the Integrity Committee provisions and carrying
them forward, I think you would do everybody a service if you
reviewed the due process procedures established by the IC, the
consistency of their application, and why it takes so long to
conduct some of these investigations. That is important to do
not only because of accountability, but in fairness to the
Inspectors General who end up getting investigated. And I think
it would bring greater transparency to the IC process.
A going forward step there might be for you to off-the-
record invite some of these prior IGs in. I don't know if they
would be open to that, but that concludes my statement.
[The prepared statement of Mr. Mead follows:]
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Mr. Towns. Thank you very much. Let me just say to the
witnesses there is a red light there. I just don't want you
completely ignore that light, OK? Thank you.
Ms. Tinsley.
STATEMENT OF NIKKI L. TINSLEY
Ms. Tinsley. Good afternoon, Mr. Chairman, members of the
subcommittee. I appreciate your giving me the opportunity to be
here today to discuss independence, accountability, and other
issues affecting the Inspector General community. I believe
that Inspectors General play a vital role in improving
Government operations, and that, working together with the
Councils on Integrity and Efficiency, they are uniquely
positioned to contribute to Government reform.
Knowing that I was going to be on a panel with Mr. Mead and
Ms. Hill, I knew they would do a good job of addressing the
provisions of the legislation. I am going to limit my oral
statement to an issue that I am passionate about. I am going to
belabor the salary issue, even though Ken did not.
This is about pay disparities and the negative financial
impact that accepting a position as Inspector General has on
career Federal employees.
The first step in ensuring that Inspectors General would be
at high quality takes place in the selection process. Congress
intended that Inspectors General be nonpartisan, independent,
objective, and of the highest integrity. Career civil servants
provide an excellent pool of candidates for Inspector General
due to their experience in Government and the nonpartisan
nature of their positions. Unfortunately, because of pay
disparities, many qualified career employees are no longer
willing to accept appointments as Inspector General. This is
because virtually all Inspectors General appointed by the
President, subject to Senate confirmation, receive
significantly less pay than their subordinates, the senior
managers who report directly to them, and significantly less
pay then their peers, other career civil servants who accept
appointments.
Past career civil servants appointed as Inspectors General
were members of the Senior Executive Service and were often
affiliated with the agencies where they were appointed IG. They
brought an invaluable and welcomed level of knowledge and
experience to the IG position. They were routinely rated and
recognized as outstanding SES performers and received the
maximum pay for SES members at the time of their Presidential
appointments.
The Civil Service Reform Act of 1975 codified in Title 5 of
the U.S. Code allows members of the SES who are appointed by
the President to a position which is not in the SES to elect to
retain their SES pay and benefits as if they had remained in
the SES position from which they were appointed. The
legislative history for this provision reveals that it was
intended to make it possible for career employees to serve in
top-level policy jobs outside the competitive service without
losing their status as career employees.
OPM says that this provision is used to encourage career
executives to serve at the highest levels of the Government and
to broaden the pool the President can use to choose top
managers. Title 5 allowed SES members to accept appointments as
Inspectors General to retain their SES pay until the 2004
Defense Authorization Act ended pay equity for SES Inspectors
General. The 2004 act made the SES members' annual pay
increases dependent on performance evaluations. Because of the
unique position Inspectors General occupy within the Federal
Government, there is no superior within the agency or
department that can evaluate their performance without creating
the appearance of a conflict of interest, and bringing the
Inspector General's objectivity into question.
In addition, beginning in 1994, the administration asked
Presidentially appointed Inspectors General drawn from the
ranks of the Senior Executive Service to waive their rights to
compete for annual bonuses. These awards commonly range from 5
to 20 percent of the employee's annual salary.
In addition, SES Inspector Generals are not considered for
Presidential rank awards ranging from 20 to 35 percent of
salary, awards that their colleagues are eligible to receive
and their peers in the paths frequently do receive.
Since implementation of the 2004 act, Inspectors General
who retained their SES continued to be paid at their 2003
salary level, around $142,500. Other members of the Senior
Executive Service in other paths who retained their SES status
can receive salaries up to $168,000. The financial impact of
the restriction on pay plus the elimination of award
eligibility can amount to $80,000 annually. It lowers not only
the Inspector General's standing when compared to other
executives, but also his or her retirement annuity.
The 2004 act plus the elimination of awards creates a
disincentive for current SES members to accept a position as
Inspector General. It inadvertently created the precise
situation the Civil Service Reform Act sought to avoid with its
explicit allowance for Presidential appointees to retain their
SES status to ensure that the President had the broadest
possible pool of candidates to select from when filling these
important positions.
My testimony has some options. There are a lot of people
who have ideas on options to address the salary and bonus
issue. I will say that I think that the one way to solve the
salary problem is to pay career SES members who accept
positions as Inspector General at the ceiling rate of the SES
pay scale. I think they deserve that because of their unique
positions working for the administration and the Congress and
spanning administrations.
Thank you.
[The prepared statement of Ms. Tinsley follows:]
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Mr. Towns. Thank you for your testimony.
Mr. Steinhoff.
STATEMENT OF JEFFREY C. STEINHOFF
Mr. Steinhoff. Mr. Chairman, members of the subcommittee, I
am most pleased to be here today to discuss H.R. 928 and
applaud the efforts of Representative Cooper and this
subcommittee to work to enhance IG independence and
effectiveness.
Before providing my perspectives on the bill, I would like
to briefly highlight the concept of auditor independence which
is at the heart of the IG Act and to the range of issues the
bill addresses.
Independence is the cornerstone of professional auditing.
Government auditing standards state, ``In all manners relating
to the audit work, the audit organization and the individual
auditor, whether Government or public, must be free from
personal, external, and organizational impairments to
independence, and must avoid the appearance of such impairments
to independence. Audit organizations must maintain independence
so that their opinions, findings, conclusions, judgments, and
recommendations will be impartial and viewed as impartial by
objective third parties with knowledge of relevant
information.''
In a nutshell, this is what auditing is all about, and the
principal reason Congress can place value and reliance on the
work of GAO and IGs as an independent set of eyes and ears.
Without independence, there is very little left and you really
have no more than a consultant, or someone's view.
With this concept in mind, I would now like to discuss some
of the specific provisions of the bill.
In May of last year, at the request of Congress, the
Comptroller General convened a panel of recognized leaders,
people from Federal audit investigative community, the
Congress, and others highly knowledgeable in IG matters. We
issued a report in September. I have provided that for the
record for you all. We had a very wide range and a very
experienced group to address the issues that are basically the
issues in Representative Cooper's bill.
I would just like to provide a couple of perspectives of
several of these areas.
First, while some did favor a term of office and removal
for cause, the majority did not. However, across the board
people, for the most part, favored advanced notification to
Congress. So my answer to the question, Representative Cooper,
you asked Clay Johnson earlier is yes. I think that is a
plausible solution.
I will add that an IG to be effective must adroitly
straddle two worlds. Mr. Mead I think hit it very, very well.
They have to work in a very constructive, positive way within
the agency they are serving, and they must further have strong
relationships to the Congress. Whereas terms of office and
removal conditions may or may not be important to independence,
what I think at the end of the day is perhaps the most
important is the selection and confirmation process and then
the regular oversight by Congress, is Congress bringing the IG
up, is Congress asking the IG for something. I know that the
IGs that are most successful are the ones that do have those
relationships.
Second, the provisions in the bill that deal with the
budgets. The views of the panel were very, very mixed. I would
say that most believe that the separate budgets for
Presidential IGs, that process works and that process should be
extended to the DFEs, the non-Presidential IGs.
I would add a broader perspective here. I think it is very
important, because I don't think there is an IG or GAO that
would say that we didn't need more money; that as Congress
looks at the appropriation request for an IG, that they
consider the return on investment. That would be a very
important factor in determining whether these are being
sufficiently staffed or not.
The chairman talked about, I think it was $9.9 billion in
his opening. I think GAO's savings last year were over $50
billion. But I am not sure the budgets of either party are
looked at fully in terms of what is the return on investment,
so that is something you might want to look at.
Third, the GAO has long held and called for a combined IG
Council in statute, together with a separate appropriation
account to fund the council. We are supportive of that. Our
panel had mixed views as to whether this should be established
in statute, but they did favor dedicated funding for the
existing councils.
With respect to whether the IG Integrity Committee should
be in law, our panel was not asked to address that perspective,
but I will enthusiastically endorse that. This is a very
important mechanism. It has been a mechanism there for many
years. While certainly someone might want to fine-tune parts of
it, as Mr. Mead mentioned, it is something that is very, very
key, and having it in law would provide, I think, some
permanence here.
With respect to pay, we will endorse what others have said.
Our panel strongly believed that is something that must be
addressed sooner than later. I will say there are options to
what is in the current bill, which we think might be kind of
difficult, and options can be authorities through OPM for some
of the garden variety things that IGs wish to do, and then, I
think as was proposed, a real look at whether you tie IG pay
into SES pay.
Finally, our panelists overwhelmingly supported the
provisions relating to investigative and law enforcement
authorities.
In closing, since the passage of the landmark act almost
three decades ago, the IGs have continued to play an essential
role in improving Government accountability by providing
objective and independent audits, investigations, covering the
full range of programs and operations. Independence in both
fact and appearance has been a critical element to this
success, and it is essential to the continuing success of the
IG concept.
We support overall what Representative Cooper is trying to
do here and look forward to working with this subcommittee, as
well as Representative Cooper, as these matters are looked at
further.
Thanks again for inviting me.
[The prepared statement of Mr. Steinhoff follows:]
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Mr. Towns. Thank you very much, Mr. Steinhoff.
Ms. Burrows.
STATEMENT OF VANESSA BURROWS AND FRED M. KAISER
Mr. Kaiser. Mr. Chairman, may I interrupt for just a second
to thank, first of all, the subcommittee and you for inviting
us to testify on behalf of this legislation. I am Fred Kaiser.
Ms. Burrows and I are sharing responsibility for our prepared
statement, as well as our oral statement. I must say I have
been asked to go first, if you don't mind.
Mr. Towns. We will accept that.
Mr. Kaiser. OK. Fine.
The Inspector General Act, as has been noted here,
celebrates its 30th anniversary next year, and indeed last year
was the 30th anniversary of the first of the contemporary
statutory IGs that were created. Several of us at CRS had an
opportunity to work on that legislation, both with L.H.
Fountain, one of your predecessors, as well as members of the
House Government Operations Committee, as it was known at the
time.
That legislation and succeeding legislation has had
bipartisan and bicameral support here on the Hill, and in
combatting waste, fraud, and abuse IGs have been granted a
substantial amount of independence, authority, and resources,
and in combination these assets are probably greater than held
by any similar internal auditing and investigating office at
any level of government, here or abroad, now or in the past.
Nonetheless, H.R. 928 attempts to address recent and in
some cases longstanding congressional concerns regarding the
Offices of Inspector General. Given the time we have available,
however, we will only look at a few of them.
One we have heard so much about is the fixed term of
office, 7 years with the possibility of reappointment. The
grant of a fixed term of office does not run contrary to
precedent and has been viewed as providing the incumbent with a
chance to gain expertise as well as independence. However, only
one Inspector General has a fixed term of office, and that is a
7-year term which can be renewed in the U.S. Postal Service.
The Peace Corps IG also has a limited term, but that is only
indirect because all Peace Corps personnel are limited to 5
years with a possibility of an extension as far as 8\1/2\
years. Nonetheless, only the IG in the Postal Service has that
specific provision.
Questions might arise, however, whether 7 years is
sufficient, since it does not extend across a two-term
Presidency. In addition, allowing for reappointment, which
would extend, of course, an incumbent's tenure, might impinge
on the IG's independence. He or she would be reappointed by an
official who or whose political allies might be subject to an
IG investigation at the time.
Also, a term limit, even if renewable, might still offer a
lame duck Inspector General if it becomes evident that he or
she will not be reappointed. Some have, therefore, suggested as
an alternative that there be a single longer term, 10 or 15
years, without the possibility of reappointment, as currently
applied to the Comptroller General.
Second, the IG budgets and appropriations, again, we have
heard comments about that. H.R. 928 would require reporting of
the IG's initial estimates directly to the agency head, Office
of Management and Budget, and, of course, appropriate
committees of Congress. This would ensure that all three units
were aware of the initial estimate, and thus enable each to
calculate any decrease or adjustment made afterwards by agency
officials or by OMB.
In addition to finding any such alterations, the change in
budget reporting could also contribute to congressional
oversight of the IG offices and their projected spending, but
also as well as to OMB and agency leadership. So it enhances
congressional oversight in a very meaningful way, it would
appear.
My colleague, Ms. Burrows, who is an attorney at CRS, would
like to comment, if she may, on the removal for cause
provision.
Ms. Burrows. H.R. 928 proposes a change in the removal
provision for IGs by requiring that removal by the President or
the agency head must be for cause on specified grounds such as
neglect of duty, inefficiency, or malfeasance of office.
Currently, IGs have limited protection with respect to removal
from office. IGs can be removed from office for any reason by
the President or the agency head.
The Supreme Court has held that Congress has the authority
to limit removal of individuals by the President, and that
Congress can determine for which reasons the individuals should
be removed. In Humphrey's Executor v. The United States, the
court determined that appointed officers other than officers
performing purely executive functions could not be removed
during their terms of office except for the causes listed in
the statute.
According to the court, congressional restraints on the
President's power of removal fall within the principle of
separation of powers. In Morrison v. Olson, the Supreme Court
expanded Congress' authority as established in Humphrey's
Executor. The court held that now Congress has the authority to
provide for-cause removal protection to any advice and consent
officer.
In sum, the addition of the restriction of removal only for
cause would protect IGs from being removed by the President or
an agency head based on policy reasons, alone. H.R. 928
specifies particular grounds for removal, and thus makes clear
that those reasons are the only ones the President or the
agency head can remove an IG.
Thank you.
[The prepared statement of Ms. Burrows and Mr. Kaiser
follows:]
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Mr. Towns. Thank you very much.
Let me thank all of you for your testimony, and let me
begin by first--you know, Ms. Hill, you indicated that you
commented about more oversight from Congress. Could you expound
on that?
Ms. Hill. Well, my comments partly reflect my time as IG.
They also reflect the years I spent doing congressional
oversight and investigations, which is, if you count 9/11,
almost 16 or 17 years.
I just firmly believe that congressional oversight is part
and parcel of the equation that drives IG independence. Because
the beauty of the statute, of the IG Act, is that the IGs, if
they have an engaged Congress and they have, on the other hand,
an engaged department, which they usually do, since they are in
the department and they are talking about department
operations, if both of them are looking closely at what the IG
does, and normally most of the time Congress and the Department
may take a slightly different view of what is going on, that
tension between the views of Congress and the agency almost
forces those IGs to stick to the facts, to be objective, and to
do, in my view, professional oversight.
They cannot go too far over the line each way because
either the department is going to be on them and call them, if
they are skewing it to the Congress' side. If they skew it to
the department side, Congress will be after them. But to make
that work Congress has to be paying attention, they have to
look carefully at what the IGs are doing.
I recall years ago, when I worked on the Senate
Governmental Affairs Committee and the Subcommittee on
Investigations, and that full committee was one of the
committees that was heavily engaged in the drafting and the
passage of the original IG Act, Senator Glenn and others on
that committee. They were very familiar with the IGs, and they
had a process in place that they were constantly, every time an
IG semi-annual report came out, some staff person on that
committee was responsible for reviewing each and every--they
had different agencies' reports. They looked at those reports.
They looked at what was in there.
Nowadays there is even more to look at because the IGs,
they used to just list summaries of cases; now they actually
identify most of them, what the biggest problems at these
agencies and departments are.
If Congress uses that as a tool for their own oversight,
they can engage the IGs and they can be interested and
attentive to what is going on, and it will force the IGs to do,
in my view, more professional work, more thorough work, and
remain objective, because Congress is going to look at it
slightly different than the Department does. The Department
obviously is trying to, in their natural course of things, is
going to try and protect the department's interest. Congress
tends to have a bigger and broader view of oversight for the
Federal Government as a whole. I think you need both of those
viewpoints, and the IGs to be independent need to have Congress
engaged enough to insist that they are allowed to do the job
they are supposed to be doing.
Mr. Towns. Thank you very much.
Starting with you, Mr. Steinhoff, and going this way, do
you support a term of office, set date and time?
Mr. Kaiser. I think there are pros and cons to it. The
panel that we had generally did not support it. I agree with
Mr. Mead that it would not hurt, but there are certainly other
ways for an IG to be fully independent, and there are, I think,
some operational issues with terms of office for that many
people and the process that would, in fact, go through.
One of the issues that the panel that GAO raised was that
the provisions of the bill didn't really deal with whether the
IG was incumbent or not. Did they have the basic competence to
do the job? Were they doing a bad job? They felt there were
other mechanisms to deal with the removal issues.
I think the provision to provide for advanced notice, let's
say 30 days in advance, whatever the timeframe you wanted to
select, would, in fact, provide that protection.
Mr. Towns. Ms. Tinsley.
Ms. Tinsley. Well, I was part of the GAO panel, actually,
and pretty much agree with what Jeff said. I don't like the
idea of term limits, although I could argue term limits. You
can argue. It is easy to argue both sides of that. It is hard
to decide what the right answer is. Obviously, you shouldn't
ask an IG to leave for the wrong reason; at the same time, if
the administration asks you to leave, I think it might be
difficult for an IG to be effective, because it is all about
convincing the agency to make improvements to its programs and
operations, and if that agency does not have faith in you it is
going to be hard to be effective. So I think 30 day notice
might be a better approach.
Mr. Towns. But we are talking about independence. How do we
get there? I mean, if he knows or she knows that the agency
could just sort of move them on, or they have no really--you
know, I am looking at the whole thing in terms of the fact that
you can't be too comfortable if you know that they can just
move you out. So a certain amount of time would sort of give
you a certain amount of protection and independence, wouldn't
it?
Ms. Tinsley. You know, like Ken, I served for two
administrations, and there have been a number of Administrators
at the Environmental Protection Agency, particularly during
this administration. I believe that our office issued some very
hard-hitting reports while I was the Inspector General, and I
did not--and even though I said things to the Administrator
that were not popular, I did not ever have a problem with being
concerned that I was going to be asked to leave because I was
writing hard-hitting reports. So I think it is, in part, an
issue with perhaps the integrity of the agency head, in
addition to the IG, and I think that if you pick someone for
the job who isn't well vetted and who turns out to not be an
IG, there needs to be a way to ask that person to leave.
Mr. Towns. Yes.
Mr. Mead.
Mr. Mead. If you fix the pay, you might be able to go, I
think, the 7-year or 9 year term. I don't think it would hurt.
If you are not going to fix the pay, I don't know the type of
people that can stay in those jobs for seven or 9 years at the
current pay. Anyway, I won't go further on that.
I think the most important thing is, though, as Ms. Tinsley
and others have said, the IG needs some protection that if you
are coming out with a very unpopular, painful finding and
recommendation, you don't want to be in peril of losing your
position over that.
Another thing on the term limits, sir, is when you come up
toward the end, if it is renewable term, I don't want to see
situations where the IG has to feel he is on good behavior for
3 years, so I am not really a big fan or renewable terms.
On the other hand, I am not a fan of the Comptroller
General's term. It seems like a very long time to me. Mr.
Walker, Mr. Ballard sure wouldn't go that far, but 15 years is
a big chunk of time for one particular job.
Mr. Steinhoff. For the record, I am supportive of that.
[Laughter.]
Mr. Towns. Ms. Hill.
Ms. Hill. Yes, I do support the term limits. The classic
example--and it is a little closer to the 7-years. The
Comptroller is 15--is the Director of the FBI. That seems to
have worked reasonably well over the years. You don't hear a
lot of complaints, maybe some but not too many, about the
politicization of the FBI any more.
My problem with the 30 day notice idea is that if you tell
Congress, what is Congress going to do about this in 30 days.
It is not always easy for Congress to react. That is also an
issue with the provisions on the cause. I think I support that.
I think it is a good idea to have cause for removal, but you
have to anticipate down the line what happens once that
happens.
Say the President decides he is going to remove somebody
for what he thinks meets one of those terms. He notifies
Congress. Congress may disagree that it is the same. They may
not view the definition in the same way. Then what do you do?
Does Congress have the right to cut that off somehow? If so,
how? Does the individual have the right to bring a cause of
action in a court to stop the termination?
So I think, as far as the act goes, as far as the bill
goes, it is a good idea, but as a practical matter, if that
ever happens you are going to have issues raised about now
what. What do we do? And the same thing I think would happen
with this 30 day to the Hill, because what would Congress do to
prevent that. If they wanted to stop it, then what?
That is why I would support the term limit.
Mr. Towns. Right. Thank you very much.
I yield to the ranking member, Mr. Bilbray.
Mr. Bilbray. Thank you, Mr. Chairman.
Mr. Chairman, last year marked my 30th year in government,
in management of government. Going through the steps, being a
mayor at 27 and administering a county of over 3 million 6
years later, there has been a lot of oversight and a lot of
this kind of auditing going on, and so some of these things are
sort of interesting.
Mr. Kaiser, you were talking about a how many year term?
One year term, no renewal?
Mr. Kaiser. Seven year term as it was provided here, with
reappointment possible. The Comptroller General has the 15 year
term that is non-renewable. FBI Director is 10 years, non-
renewable.
Mr. Bilbray. You know, as somebody who spends a lot of time
in Mexico, I see what term limits have done there. My question
is: doesn't that make the lame duck syndrome, immediately makes
it a 7-year lame duck rather than maybe a shorter period?
Mr. Kaiser. It would in the sense that, especially as you
get closer to the end of that term, once a person enters the
office at 7 or 10 or 15 years they have longevity ahead of
them; however, when you get close to the end, that person's
influence probably wanes at that point, yes.
Mr. Bilbray. And the eyes may wander, shopping for the next
step. And I only have to say, Mr. Chairman, I want to clarify
that my comments are not in any way in opposition or reflecting
support or opposition of H.R. 928. I think that it is a good
framework to start discussing changes.
Ms. Hill, you used a reference to the FBI Director. Now
let's be very frank. It is a lot different. The FBI Director,
wouldn't you agree, is an apex, is really a culmination of a
career, law enforcement career, to be something that you would
shoot for and know that this was the golden ring that you were
grabbing for, and thus knowing that when you took this job that
would probably be the end of most of your aggressive
professional life?
Ms. Hill. Well, that is true, but I still think it helps
the independence a little bit. I mean, you know, in the IGs,
you know, there is a great variety in the type of people who
become IGs. There is the statutory requirements, and there are
certain career professionals, there are people with auditing
experience, investigation experience, etc., so you have a wider
range of types.
I am not a big, big fan of term limits, but I think in the
idea of the IG's situation you do need as much protection and
independence as you can get, as long as you maintain your
accountability, because that is such a unique job. It really is
a unique job in the Federal Government.
Mr. Bilbray. My concern, though, is when you hit this what
some of us may not say is top management and put term limits
there, you get two types of candidates: one, those who
basically are looking for a way to basically close out their
career, and the other is a hotshot young candidate----
Ms. Hill. Right.
Mr. Bilbray [continuing]. Who may be looking at this to
create a name and jump to another post. But that jump may be
reflecting a certain industry over here or a certain agency
over there, and may effect the proficiency. So I think there is
a flip side here, wouldn't you agree, that you need to look at
this seriously. This may have unintended----
Ms. Hill. I agree you should definitely look at it
seriously. I mean, one option would be consider maybe a
slightly lesser term and stagger it. I mean, the issue now is
the terms. To the effect there are imaginary terms, it goes
with the administration, and maybe stagger it so that you get
some--you know, keep some independence there.
Mr. Bilbray. I think, obviously, with the legislation posed
it is going to end up having some staggering.
Ms. Hill. Right.
Mr. Bilbray. I think in reality, from experience, we know
that even political appointments are staggered because
administrations coming in don't get around to it. I mean, in
fact, many appointments are not really addressed until almost
the second part of the term.
Ms. Hill. Right. And the IGs, that has been a problem with
IG appointments, because, at least years ago, I think they were
not always the first ones to get appointed, and there were some
IG positions, including the one at Defense, that were vacant
for a long period of time or had acting people in them, which
is not a good thing, either, because my view of that is that
decreases the amount of practical independence they have. It is
not an appointed----
Mr. Bilbray. Thank you, Ms. Hill. I think the point is that
if we stagger it, we stagger it in between, in reality it
probably will not only help to keep the continuity, but I think
also will help the administration sort of concentrate on those
appointments that they might be able to get appointed in time
and on schedule.
Ms. Tinsley, first of all let me warn you I was raised by
an accountant and I married an accountant. That is probably why
I am so disorganized. No, actually, I married her because I was
so disorganized.
You were an accountant when you were selected for your
position to IG. Do you see that as being a critical talent when
reviewing the EPA, or do you see it as a beneficial one? How
would you judge that in there? And do you think that credential
is very important at agencies like EPA, or would other
credentials do you think would be more effective?
Ms. Tinsley. I think that the talent that a person should
have would analytical ability. You don't have to be a CPA to
have analytical ability. In fact, many would say that most of
them don't. But I also think that you need to have management
and leadership skills. I think that is key, regardless of your
background, although the career fields that the IG Act
specifies equate to the kind of work Offices of Inspector
General do, and it makes sense to me to bring someone into that
position that understands the kind of work they are going to be
doing, because they are leading an organization that is going
to be making important recommendations.
Mr. Bilbray. Thank you.
Let me for the record point out that both my mother and my
wife agree that I will never balance the budget because I can't
even balance my own checkbook. [Laughter.]
I yield back, Mr. Chairman.
Mr. Towns. Thank you very much.
I yield to Mr. Cooper.
Mr. Cooper. Thank you very much, Mr. Chairman.
I think, as my colleagues can see, we have tried to come to
a reasonable compromise between differing points of view, but
it is hard to please everyone. In fact, sometimes it is
impossible. But I think, as my colleagues will realize, when a
Presidentially appointed IG can be removed for any reason, an
agency appointed IG can be removed for any reason, that really
gives you slender comfort. Here on this panel we have some of
the more successful IGs. You have had good relationships with
multiple administrations.
Our job is to legislate for all circumstances, and that is
why I think many of us on this side of the table, being elected
to terms, we are accustomed to terms, and that gives us some
comfort. Many IGs have never known that comfort, and there are
pros and cons on anything.
But I share Ms. Hill's concern. What will Congress do with
the information of 30 day advance notice? It seems like, at a
bare minimum, we have to put some sort of for-cause in there to
protect IGs' independence.
We always want accountability, but we are trying to find
that right balance. Perhaps someone will deliver the magic
formula that will make everyone happy, but my goal is to move
reasonable legislation, because, as I noted earlier, it has
been 4 or 5 years. That is 4 or 5 years that IGs have lacked
the pay equity and the independence and the protections that I
think we can all agree on, so let's not let the best be the
enemy of the good here.
I know our colleagues on the other side of the aisle will
have useful suggestions to make. The key is to protect the IGs
out there who are catching the bad guys, who are saving the
taxpayer dollars.
It is really a marvelous, good news story. There are so few
good news stories about Government sometimes, but I think it is
very important that we focus on the productive work that IGs
are doing and thank goodness that they are, and hopefully we
can attract even, you know, more qualified IGs and protect them
so that they can do that good work.
That is my goal, and I appreciate hearing so much expert
testimony on this, including the constitutional provisions that
we need to be aware of so that we make sure that we stay within
our constitutional bounds, because no one can predict which
party will control which branch. We need this law to work for
all circumstances.
I thank you, Mr. Chairman, for holding this hearing.
Mr. Towns. Thank you very much. And I thank you for the
work that you are doing on it. I think it is so important that
you talk to as many people as you possibly can before moving
forward what you are doing.
Mr. Miller.
Mr. Miller. Thank you, Mr. Chairman.
Ms. Hill said that Congress should be more involved in the
oversight of Inspectors General, not just using the Inspectors
General work as a tool for oversight of the entire Federal
Government, but actually involved in the oversight of
Inspectors General.
Ms. Hill. What I mean is that they should be attentive to
what IGs are doing. They should not hesitate if there are
issues in those departments that they think the IG should be
looking at, to request the IGs to look at them and to look at
what they are finding, so that, you know, that the IGs, when
they are doing an inquiry, they know that not only is the head
of the department going to be paying attention to it, but the
Congress is going to be paying attention to it, and therefore
they are going to do their best to make that an objective,
fact-based inquiry.
Mr. Miller. Well, in the spirit of Congress providing
oversight of the Inspectors General, when I asked a question to
Mr. Johnson earlier he said that it was not true that Mr.
O'Keefe had picked Mr. Cobb to be the Inspector General of
NASA, but that came from the interviews conducted by the
Integrity Committee, itself, and specifically from the
interview of Courtney Alexander Stadd, S-T-A-D-D, who was the
chief of staff to Sean O'Keefe at NASA and the White House
liaison there.
According to a memorandum of the interview of PCIE staff,
which I guess was a HUD Inspector General that conducted the
report, staff said that O'Keefe had wanted to replace Roberta
Gross, the previous IG, from the outset, and staff advised that
O'Keefe interacted with Cobb when Cobb was working at the White
House and O'Keefe was at Office of Management and Budget. That
was how they got to know each other, as Cobb handled the ethics
evaluation for political appointees when he was at the White
House. O'Keefe asked Stadd to contact Cobb and inquire if he
was interested in the IG's position at NASA. This was when the
position was not yet vacant, was still filled by Roberta Gross.
Stadd contacted Cobb. Cobb seemed interested. Stadd
indicated ``he thought it was unusual that O'Keefe had a say in
who the next IG would be.'' Stadd did not know the procedure
for Cobb to apply for a position not yet vacant.
Does that also strike you as an unusual way to pick an IG?
Ms. Hill. Well, again, I don't know the facts of that case,
so I can't really comment on an individual case.
Mr. Miller. For an agency head to pick the replacement--
first of all, decide that the IG needs to be replaced, and then
pick the replacement, Mr. Mead, how does that affect the
independence of the IG?
Mr. Mead. Well, I imagine there was multiple input. I am
not familiar with the facts of this case, so I am not going to
opine on that, but it strikes me that the selection process for
IGs, that it is in your interest, I think it is in the interest
of the executive branch for the President to have a pool of
candidates. I pointed out I think GAO is a good source of
candidates. I don't think it is unusual at all for an agency
head to be asked their thoughts about whether they have a
particular candidate in mind.
I am really only aware of my own case and how I got to be
IG. I didn't know the Secretary. I think my name was dropped in
a hat by somebody from GAO that knew somebody in White House
personnel. Beyond that, though, I really can't get into it.
Mr. Miller. Ms. Tinsley, do you have anything to say on
this point? You don't have to if you don't want to.
[No response.]
Mr. Miller. Also from the PCIE report--and I talked about
this earlier--the report of investigation found that Cobb
frequently joined O'Keefe in lunches intended for senior staff
at NASA headquarters, played golf on at least two occasions
with Administrator O'Keefe, joined O'Keefe on the NASA aircraft
for official travel on several occasions. Our committee has
gotten tips from NASA employees that they believe that Mr.
O'Keefe flew in the NASA plane when regulations of how the
plane could be used would have required that he fly
commercially.
Those tips apparently didn't go to the Inspector General of
NASA, they came to us, the Oversight Committee, perhaps because
Mr. Cobb was on the plane with him. He referred to Mr. O'Keefe
as his boss, sought guidance from the Administrator on the
audit design for at least two audits, sought O'Keefe's review
of draft OIG opinion regarding the independence of the Columbia
Accident Investigation Board. That was the shuttle that was
destroyed on re-entry. He advised O'Keefe about search warrants
to be issued and the significant criminal investigation before
those warrants were executed.
The PCIE report concluded that none of these instances
standing alone is sufficient to create an appearance problem,
but it is the responsibility of the IG to consider how the
combined effect of this interaction with the agency head might
cloud or be perceived to cloud his independence.
Then the report goes on to talk about two specific
instances where Mr. Cobb had prevented NASA from reporting
apparent criminal conduct to law enforcement agencies and found
that those two agencies created further the appearance of a
lack of independence.
What is your own view as from the experience of the
Inspector General of the propriety of this combined, this
cumulative effect of an appearance, Ms. Hill?
Ms. Hill. Again, I am a stickler for detail and fact, and I
am very reluctant to comment on facts where I haven't read all
the reports and know all of the----
Mr. Miller. What is your opinion?
Ms. Hill. But I will tell you that, you know, IGs live in
glass houses. I have always thought that. And you have to be
very careful about appearance, so I would just say that, you
know, I can only--as Ken said, I can only speak for my own
personal experience, and I always tried to be very careful and
keep not just the legal line but the appearance issue in mind,
because people do look at you and you have to, you know, do
what you think is best and effective in the agency, but also
keep in mind that you are supposed to be independent.
That probably is not really answering your question, but,
again, you know, I feel very uncomfortable commenting on facts
that I do not really--I haven't seen the reports. I haven't
read the material. I don't know what happened, what didn't
happen in that case.
Mr. Towns. Thank you very much, Mr. Miller.
I would like to put the opening statement from Congressman
Davis into the record. Without objection, so moved.
Let me thank all of you for your testimony. I think that
you have been extremely helpful. As you can see, this is an
issue that we really, really want your input on, because we
think that something needs to be done, and, of course,
Congressman Cooper is moving in the right direction. I think
that his openness to soliciting to get additional information,
input coming from both the Members and from you and others as
witnesses, I think indicates how serious he is about doing
something about the problem.
Of course, I agree with you. I think the appearance is
something that we have to address. I mean, we just cannot
ignore that. Of course, the salary, I think that is an issue
and I think these are all the kind of things that we hope to be
able to address before the end.
Thank you very much for your testimony, again. We look
forward to working with you.
Thank you.
[Whereupon, at 4:18 p.m., the subcommittee was adjourned.]
[The prepared statement of Hon. Tom Davis and additional
information submitted for the hearing record follow:]
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