[Senate Hearing 110-587]
[From the U.S. Government Publishing Office]
S. Hrg. 110-587
STRENGTHENING THE UNIQUE ROLE OF THE NATION'S INSPECTORS GENERAL
=======================================================================
HEARING
before the
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JULY 11, 2007
__________
Available via http://www.access.gpo.gov/congress/senate
Printed for the use of the
Committee on Homeland Security and Governmental Affairs
----------
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TED STEVENS, Alaska
THOMAS R. CARPER, Delaware GEORGE V. VOINOVICH, Ohio
MARK L. PRYOR, Arkansas NORM COLEMAN, Minnesota
MARY L. LANDRIEU, Louisiana TOM COBURN, Oklahoma
BARACK OBAMA, Illinois PETE V. DOMENICI, New Mexico
CLAIRE McCASKILL, Missouri JOHN WARNER, Virginia
JON TESTER, Montana JOHN E. SUNUNU, New Hampshire
Michael L. Alexander, Staff Director
Holly A. Idelson, Counsel
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Melvin D. Albritton, Minority Counsel
Trina Driessnack Tyrer, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator Lieberman............................................ 1
Senator Collins.............................................. 4
Senator Akaka................................................ 7
Senator McCaskill............................................ 8
Senator Coburn............................................... 34
WITNESSES
Wednesday, July 11, 2007
Hon. Clay Johnson III, Deputy Director for Management, Office of
Management and Budget.......................................... 10
Hon. Glenn A. Fine, Inspector General, U.S. Department of Justice 12
Hon. Earl E. Devaney, Inspector General, U.S. Department of the
Interior....................................................... 15
Hon. Eleanor J. Hill, Former Inspector General, U.S. Department
of Defense..................................................... 19
Danielle Brian, Executive Director, Project on Government
Oversight...................................................... 23
Alphabetical List of Witnesses
Brian, Danielle:
Testimony.................................................... 23
Prepared statement........................................... 73
Devaney, Hon. Earl E.:
Testimony.................................................... 15
Prepared statement........................................... 55
Fine, Hon. Glenn A.:
Testimony.................................................... 12
Prepared statement........................................... 39
Hill, Hon. Eleanor J.:
Testimony.................................................... 19
Prepared statement........................................... 63
Johnson, Hon. Clay III:
Testimony.................................................... 10
Prepared statement........................................... 37
APPENDIX
Inspectors General Fact Sheet, June 2007, House Committee on
Oversight and Government Reform................................ 76
Prepared statements submitted for the Record from:
Hon. David M. Walker, Comptroller General of the United
States, GAO................................................ 83
Hon. Phyllis K. Fong, Inspector General, U.S. Department of
Agriculture................................................ 106
Jane E. Altenhofen, Inspector General, National Labor
Relations Board............................................ 120
Dr. Christine Boesz, Inspector General, National Science
Foundation................................................. 123
Susan Khoury, Former Special Agent, Office of the Inspector
General, U.S. Nuclear Regulatory Commission................ 129
Responses to Post-hearing Questions for the Record from:
Mr. Johnson with an attachment............................... 133
Mr. Fine..................................................... 141
Mr. Devaney.................................................. 144
Ms. Hill..................................................... 145
Ms. Brian.................................................... 147
STRENGTHENING THE UNIQUE ROLE OF THE NATION'S INSPECTORS GENERAL
----------
WEDNESDAY, JULY 11, 2007
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Joseph I.
Lieberman, Chairman of the Committee, presiding.
Present: Senators Lieberman, Akaka, McCaskill, Collins, and
Coburn.
OPENING STATEMENT OF CHAIRMAN LIEBERMAN
Chairman Lieberman. Good morning. Welcome to the hearing. I
am going to begin, unusually, without Senator Collins here
because she had a prior commitment and she is going to arrive a
little late. But I thank you all for coming.
This hearing is on the topic of ``Strengthening the Unique
Role of the Nation's Inspectors General.'' This morning we are
going to ask two distinct but related questions fundamental to
the operation of our Nation's Government watchdogs. One is: Who
is watching the watchdogs? And the second is: Who is watching
out for the watchdogs?
We ask these questions with some intensity because of
recent events that raise concerns that some Inspectors General
may have been retaliated against by their agency heads because
they were, in effect, too independent, while other Inspectors
General have acted in a way that has led some to claim that
they were not independent enough.
In today's hearing, we are going to ask our panelists how
we can best maintain, indeed strengthen the independence that
is crucial if these offices are to carry on their vitally
important jobs of ensuring that taxpayers' money is spent
efficiently and that the executive departments of our
government carry out their responsibilities fairly.
In the United States, the job of Inspector General is
actually older than the Republic itself, tracing back to
Prussian Baron Friedrich von Steuben's service as Inspector
General to General George Washington during the Revolutionary
War. The conflict inherent in the Inspector General's office
was clear even then. Washington wanted von Steuben and his
inspectors reporting only to him. Von Steuben wanted more
independence.
The Continental Congress, perhaps in a more harmonious and
compromising day than our own, split the difference by passing
legislation requiring that while Inspector General von Steuben
would report directly to General Washington, his reports would
go to Congress as well. The system worked so well that many of
the ideas and systems that von Steuben began putting into place
in 1778 are still used by military Inspectors General today.
Building on this model and, interestingly, precisely 200
years later, in 1978 both Houses of Congress unanimously passed
the Inspectors General Act that created an office of Inspector
General in 12 major departments and agencies that would report
both to the heads of the agencies as well as to Congress. These
new IGs were empowered with even more independence than their
military counterparts to ensure that they would be able to
conduct truly robust oversight. The law was amended in 1988 to
add an Inspector General to almost all executive agencies and
departments.
Overall, I would say that these laws and the Inspectors
General are working well, as desired, in the public interest to
combat waste, fraud, and abuse in the Federal Government.
According to the President's Council on Integrity and
Efficiency, last year alone IG audits led to $9.9 billion in
potential savings and another $6.8 billion in savings when the
results of civil and criminal investigations are added in.
Two of our witnesses today--Department of Justice Inspector
General Glenn Fine and Department of the Interior Inspector
General Earl Devaney--are models, in my opinion, of what an
Inspector General should be.
Mr. Fine, for example, recently detailed the sloppy and
sometimes inappropriate use of National Security Letters to
conduct wiretaps within our country. Mr. Devaney has uncovered
costly errors regarding oil and gas leases, while also
challenging lax ethical conduct by Department of the Interior
officials.
While obviously not all IG activities can or should
generate as much attention as those two investigations I have
mentioned, this is the kind of independence and credible work
that really sets a standard and is appreciated.
Unfortunately, there are recent reports about IGs that are
more troubling with regard to their relationship to their
agency heads, and noteworthy here and recent is the former
Smithsonian Inspector General, Debra Ritt, who said she was
pressured by the former Director of the Smithsonian, Lawrence
Small, to drop her investigation into the business and
administrative practices of Mr. Small and other high-ranking
officials at the Smithsonian.
The investigation continued--first by Ms. Ritt and then by
her successor--and ultimately revealed that Mr. Small had been
involved in a series of unauthorized expenditures.
At the General Services Administration, Administrator
Lurita Doan has been highly and publicly critical of Inspector
General Brian Miller's audits of the agency's office practices
and into prices vendors were charging the government for
products or services, at one point, according to Inspector
General Miller, actually calling his auditors ``terrorists''
and threatening to cut his budget and responsibilities.
At a different end of the spectrum, we have had some IGs
step down amid allegations about their misconduct. At NASA, for
instance, an Administration investigation of IG Robert Cobb
concluded that he had created an appearance of lack of
independence by his close relationship with the NASA
Administrator and that he had created an ``abusive work
environment.''
So today I think this Committee wants to reaffirm its
support of the Inspectors General and the critical work that
they do on our behalf and on the taxpayers' behalf, and we want
to ask how best to balance the need for the IG offices to be
independent investigative forces for good government, while
still ensuring that those investigations are thorough and fair.
I know that both Senator Collins and Senator McCaskill have
given much thought to this topic and have made proposals for
change that I hope we will have the opportunity to discuss this
morning.
[The prepared statement of Senator Lieberman follows:]
PREPARED STATEMENT OF CHAIRMAN LIEBERMAN
Good morning. In today's hearing, ``Strengthening the Unique Role
of the Nation's Inspectors General,'' this Committee will examine two
distinct but related questions fundamental to the effective operation
of our nation's government watchdogs.
One: ``Who is watching the watchdogs?
And two: ``Who is watching out for the watchdogs?''
We need to ask these questions because recent news stories have
said that some Inspectors General may have been retaliated against by
their agency heads, while other Inspectors General have created the
appearance of not being independent enough, sweeping problems and
complaints under the rug.
With today's hearing, we are going to ask our panelists for advice
on how we can improve the existing Inspectors General legislation to
encourage and maintain the independence that is crucial if these
offices are to carry on their vitally important jobs of ensuring that
taxpayers' money is spent efficiently and that the executive
departments of our government carry out their jobs fairly.
In the United States, the job of Inspector General is older than
the Republic itself, tracing back to Prussian Baron Friedrich von
Stueben's service as Inspector General to General George Washington
during the Revolutionary War.
The conflict inherent in the Inspector General's office became
clear even back then. Washington wanted von Steuben and his inspectors
reporting only to him. Von Steuben wanted more independence.
The Continental Congress split the difference by passing
legislation requiring that while Inspector General von Steuben would
report directly to General Washington, his reports would go to Congress
as well.
The system worked so well that many of the ideas and systems von
Steuben began putting into place in 1778 are still used by military
Inspectors General today.
Building on this model, precisely 200 years later, in 1978, both
Houses of Congress unanimously passed the Inspectors General Act that
created an office of Inspector General in 12 major departments and
agencies that would report both to the heads of the agencies as well as
Congress.
These new IGs were empowered with even more independence than their
military counterparts to ensure they would be able to conduct robust
oversight.
The law was amended in 1988 to add an Inspector General to almost
all executive agencies and departments to combat waste, fraud, and
abuse.
Overall, the law is working as desired. According to the
President's Council on Integrity and Efficiency, last year alone IG
audits resulted in $9.9 billion in potential savings and another $6.8
billion in savings when the results of civil and criminal
investigations are added in.
Two of our witnesses today--Department of Justice Inspector General
Glenn Fine and Department of the Interior Inspector General Earl
Devaney--are in my view models of what an IG should be.
Among the many efforts of his office, Mr. Fine recently detailed
the sloppy and often inappropriate use of National Security Letters to
conduct wiretaps within the United States. Mr. Devaney has uncovered
costly blunders regarding oil and gas leases, while challenging lax
ethical conduct by department officials.
While not all IG activities can or should generate as much
attention as those investigations, this is the kind of independent and
credible work we want to make the standard for all Inspectors General
offices and that means we have to examine where the system has flaws.
On the one end, we have heard reports of the independence of
Inspectors General threatened, such as former Smithsonian Inspector
General Debra S. Ritt, who said she was pressured by former Smithsonian
Director Lawrence Small to drop her investigation into the business
practices of Small and other high-ranking officials at the Smithsonian.
The investigation continued--first by Ritt then by her successor--
and ultimately revealed that Small, among other things, had charged the
Smithsonian $90,000 in unauthorized expenditures, including chartered
jet travel, his wife's trip to Cambodia, hotel rooms, luxury car
service, and expensive gifts.
Over at the General Services Administration, Administrator Lurita
Doan has been highly and publicly critical of Inspector General Brian
Miller's audits of the agency's office practices and into prices
vendors were charging the government for products or services, at one
point even reportedly calling his auditors ``terrorists,'' and
threatening to cut his budget and responsibilities.
At the other end of the spectrum, we've had several IGs step down
amid allegations about their conduct and some have called for the
resignation of the NASA Inspector General Robert Cobb.
As many in this room are aware, an Administration investigation of
Mr. Cobb concluded that he has created an appearance of lack of
independence by his close relationship with the NASA Administrator, and
has created an ``abusive work environment.''
With today's hearing, we want to start exploring the question of
how best to balance the need of the IG offices to be an independent
investigative force for good government practices within their
departments and agencies, while still ensuring that those
investigations are thorough and fair.
I know both Senators Collins and McCaskill have given much thought
to this topic and have proposals for change that I hope we'll have the
opportunity to discuss this morning.
With that, I want to thank today's expert witnesses for agreeing to
share their thoughts and experience with this Committee to help guide
our legislative efforts.
Chairman Lieberman. I am delighted that I was able to offer
my opening statement in just the right length so that Senator
Collins has arrived. I thank you and I yield to you now.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you very much, Mr. Chairman. I
apologize for not being here to listen to your opening
statement, which I am sure was, as always, brilliant and
insightful and eloquent, and I look forward to reading it in
the record, if not sooner.
Chairman Lieberman. Yes, copies are available. [Laughter.]
Senator Collins. Thank you, Mr. Chairman.
The Inspectors General in the Federal Government perform
invaluable services for the people of this country. They serve
the taxpayers' interest in making government operations more
efficient, effective, and economical. They assist those of us
who serve in Congress in performing our oversight duties and in
determining whether or not investigations or legislative
reforms are in order. They detect and report criminal activity.
They alert agency heads to problems within their organizations.
In its most recent report, the President's Council on
Integrity and Efficiency reported that the work of the
Inspectors General has resulted in nearly $10 billion in
potential savings from audit recommendations; $6.8 billion in
investigative recoveries, and more than 6,500 indictments.
The IGs have, in fact, undertaken many major investigations
that have benefited the taxpayers of this country. To cite just
a few of the many possible examples:
The DHS IG investigated waste, fraud, and abuse in the wake
of Hurricane Katrina--an effort that ultimately revealed an
astonishing loss of taxpayers' funds exceeding a billion
dollars.
The Special Inspector General for Iraq Reconstruction not
only uncovered nearly $2 billion of waste, fraud, and abuse,
but also detected criminal activity in contracting that led to
four convictions.
Just last week, the DHS IG reported that FEMA has not
applied minimum security standards to its laptop computers and
has not implemented an adequate inventory management system.
These findings indicate continuing vulnerability to equipment
and data theft, as well as exposure to computer viruses and
hackers.
And to cite the work of one of our witnesses, IG Glenn Fine
has performed vital work in monitoring the Justice Department's
implementation of the PATRIOT Act and the FBI's use of National
Security Letters.
Clearly, the Inspectors General that have been provided by
statute for 64 Federal entities perform a vital role. Whether
they are working in a Cabinet Department like Justice,
Interior, or Defense, at the Export-Import Bank, or at the
Postal Service, they are indispensable watchdogs for auditing
and improving government performance.
It is, therefore, important that we help to ensure that the
Inspectors General are selected, compensated, protected, and
empowered in ways that will enhance their service to our
country.
As the Chairman mentioned, I have authored legislation
toward this end with the support of the Chairman and Senator
McCaskill. Our legislation, S. 680, would take some important
steps toward strengthening the role and independence of our
Inspectors General.
For example, the bill would raise the level of pay for the
IGs while prohibiting cash bonuses from agency heads. We have a
situation right now where the Deputy IGs in some departments
make more money than the Inspectors General themselves because
they receive cash bonuses. Now, clearly, it would be
inappropriate for an IG to receive a bonus from the agency head
because it sets up an obvious conflict of interest. So I think
the answer to this is to move the IG up on the pay scale, but
prohibit the award of bonuses.
Another provision of the bill would provide that IGs who
are appointed by agency heads rather than by the President be
selected for their job qualifications and not their political
affiliations--in other words, the same kind of criteria that
are used for the presidential appointments.
Another provision of the bill would bolster the
independence of IGs appointed by agency heads by requiring a
15-day notice to Congress of intent to terminate.
The bill would strengthen the subpoena power of the IGs
with respect to electronic documents--really just updating the
law.
And it would grant all IGs the ability to use the Program
Fraud Civil Remedies Act to recover fraudulently spent money.
As I mentioned before she arrived, there are other Members
of the Senate, including Senator McCaskill, who have proposed
further changes in the laws on Inspectors General. All of this
activity and the Chairman's holding this hearing demonstrates
an encouraging level of appreciation for and interest in the
work of the IGs.
Today's hearing should provide us with a valuable resource
as we study the legislative options, and I join the Chairman in
welcoming our distinguished panel, and I look forward to
hearing their observations.
[The prepared statement of Senator Collins follows:]
PREPARED STATEMENT OF SENATOR COLLINS
The Inspectors General in the Federal Government perform invaluable
services for the people of the United States.
They serve the taxpayers' interest in making government operations
more efficient, effective, and economical. They assist Congress in
performing its oversight duties and in determining when investigations
or legislative reforms are in order. They detect and report criminal
activity. They alert agency heads to problems within their
organizations.
In its most recent report, the President's Council on Integrity and
Efficiency reported that the work of Inspectors General has resulted
in:
$9.9 billion in potential savings from audit
recommendations;
$6.8 billion in investigative recoveries;
6,500 indictments;
8,400 successful prosecutions;
7,300 suspensions or debarments; and
4,200 personnel actions.
The IGs have undertaken major investigations. To cite just a few of
many possible examples,
The DHS IG investigated waste, fraud, and abuse in the
wake of Hurricane Katrina--an effort that ultimately revealed a loss of
taxpayer funds exceeding a billion dollars.
The Special Inspector General for Iraq Reconstruction not
only uncovered nearly $2 billion of waste, fraud, and abuse, but also
detected criminal activity in contracting that led to four convictions.
Just last week, the DHS Inspector General reported that
FEMA has not applied minimum security standards to its laptop computers
and has not implemented an adequate inventory-management system. These
findings indicate continuing vulnerability to equipment and data theft,
as well as exposure to computer viruses and hackers.
And, to cite the work of one of our witnesses, IG Glenn
Fine has performed vital work monitoring the Justice Department's
implementation of the Patriot Act and the FBI's use of national
security letters, ensuring that the government's response to terrorist
threats does not undermine civil liberties.
Clearly, the Inspectors General that have been provided by statute
for 64 Federal entities perform a vital role. Whether they are working
in Cabinet Departments like Justice, Interior, or Defense, at the
Export-Import Bank, or at the Postal Service, they are indispensable
watchdogs for auditing and improving government performance.
It is, therefore, important that we help to ensure that the
Inspectors General are selected, compensated, protected, and empowered
in ways that will enhance their services to our country.
I have authored legislation toward this end with the support of
colleagues, including Senator Lieberman and Senator McCaskill.
My bill, S. 680, would take some important steps toward
strengthening the role and the independence of our Inspectors General.
For example, it would:
raise the pay of Presidentially appointed IGs to Level
III while prohibiting cash bonuses from agency heads;
provide that IGs appointed by agency heads be selected
for their job qualifications, not their political affiliation;
bolster the independence of IGs appointed by agency heads
by requiring a 15-day notice to Congress of intent to terminate;
strengthen the subpoena power of the IGs with respect to
electronic documents; and
grant all IGs the ability to use the Program Fraud Civil
Remedies Act to recover fraudulently spent money.
Other Members of Congress have also proposed changes to the laws on
Inspectors General. All of this activity demonstrates an encouraging
level of appreciation for and interest in the work of the IGs.
Today's hearing should be a valuable resource as we study our
legislative options. Our witnesses bring to our hearing deep experience
in the IG process as well as views from within and outside of
government. I join the Chairman in welcoming the witnesses, and I look
forward to hearing their observations.
Chairman Lieberman. Thanks very much, Senator Collins.
Normally we just have the two of us make opening
statements, but since we only have one panel and only four
Senators here, I want to give Senator Akaka and Senator
McCaskill a chance for an opening statement, if they would like
to offer one.
Senator Akaka.
OPENING STATEMENT OF SENATOR AKAKA
Senator Akaka. Thank you very much, Mr. Chairman. I join
you and the Ranking Member in welcoming our distinguished panel
members.
I want to thank you for organizing this important hearing,
and as a matter of history, it was 30 years ago, in 1978, that
the Inspector General Act was passed. And since then really
there has not been a review. So, Mr. Chairman, I am so glad
that we are taking the time to review the IGs' responsibilities
here at this time. And it is an opportune time to review not
only the successes of our Nation's Inspectors General but to
consider how their role can be strengthened.
Inspectors General serve as watchpersons for the Executive
Branch, promoting honesty, integrity, and efficiency throughout
the Federal Government. IGs, along with Federal whistleblowers
and the Office of Special Counsel, make sure the Federal
Government works for the American people.
I am deeply troubled by recent allegations of agency
attempts to interfere with the independence of Inspectors
General. Among the most important duties of the IG is to
investigate and report the facts when there is evidence of
high-level wrongdoing in an agency. This is also perhaps an
IG's most difficult duty, and it is a time when the IG's
independence is most likely to be challenged.
Recent allegations of agency attempts to interfere with the
IGs' investigations remind us that IG independence is not an
academic matter but a pressing policy concern. For example,
Chairman Lieberman mentioned then-Secretary of the Smithsonian
Institution Lawrence Small who reportedly attempted to
interfere with the Smithsonian IG's audit of his expenses
before allegations of top-level wrongdoing were revealed.
I am particularly interested in learning more about
ensuring that IG offices have adequate resources. Perhaps they
should be required to submit their budget requests directly to
Congress. Inspectors General save taxpayers billions of dollars
by promoting efficiency and rooting out waste, fraud, and
abuse. So, ensuring that IG offices are adequately funded is a
wise investment of taxpayer money.
Again, Mr. Chairman, I want to thank you for holding this
hearing, and I look forward to the testimony of our witnesses.
[The prepared statement of Senator Akaka follows:
PREPARED STATEMENT OF SENATOR AKAKA
Thank you Mr. Chairman. I join you in welcoming our distinguished
panel members. I want to thank you for organizing this important
hearing. As the thirty-year anniversary of the Inspector General Act of
1978 nears, it is an opportune time to review the many successes of our
nation's Inspectors General (IG) and to consider how their role can be
strengthened.
Inspectors General serve as watchdogs for the Executive Branch,
promoting honesty, integrity, and efficiency throughout the federal
government. IGs--along with federal whistleblowers and the Office of
Special Counsel--make sure the federal government works for the
American people.
I am deeply troubled by recent allegations of agency attempts to
interfere with the independence of Inspectors General. Among the most
important duties of an IG is to investigate and report the facts when
there is evidence of high-level wrongdoing in an agency. This is also
perhaps an IG's most difficult duty, and it is the time when the IG's
independence is most likely to be challenged. Recent allegations of
agency attempts to interfere with IGs' investigations remind us that IG
independence is not an academic matter, but a pressing policy concern.
For example, then-Secretary of the Smithsonian Institution, Lawrence
Small, reportedly attempted to interfere with the Smithsonian IG's
audit of his expenses before allegations of top-level wrongdoing broke.
I am particularly interested in learning more about ensuring that
IG offices have adequate resources. Perhaps they should be required to
submit their budget requests directly to Congress. Inspectors General
save taxpayers billions of dollars by promoting efficiency and rooting
out waste, fraud, and abuse, so ensuring that IG offices are adequately
funded is a wise investment of taxpayer money.
Again, Mr. Chairman, I thank you for holding this hearing today,
and I look forward to learning more about these important issues.
Chairman Lieberman. Thanks very much, Senator Akaka.
Senator McCaskill, as I assume many know, if not everyone,
comes to the Senate with the unique experience of having been
the auditor for the State of Missouri, and she has submitted
legislation regarding the Inspectors General. So I am glad to
call on her now for a statement, if she would like.
OPENING STATEMENT OF SENATOR McCASKILL
Senator McCaskill. Thank you so much, Mr. Chairman.
First, I want to say that my experience as an auditor
defines my interest in this area, but I certainly acknowledge
that I am merely adding to the great work of this Committee and
hopefully can be a contributor to legislation that would
hopefully move forward that I know that the Ranking Member and
the Chairman have been engaged in long before I got here. And I
am anxious to be a bit player and contribute as we try to make
something that is very good better.
It is interesting how audits are perceived by the people
that are being audited, and really how that perception is
reflected in the public tells the public how effective that
work is going to be.
If an investigation is received by the agency with good,
constructive criticism--``We are going to fix these things''--
then that is the kind of dynamic that the public should
celebrate.
On the other hand, when someone takes the attitude that
``We are as good as we are, and we don't need to be any better,
and you are meddling or you are trying to improve something
that doesn't need to be improved,'' that is a bad sign. And,
really, what we are trying to do here today is embrace the
attitude that we can make something that is good better; that
we can foster the independence; that we can promote the
aggressive stance that IGs must take on behalf of the public
and make sure that their work is, in fact, consumed by the
public.
One of the provisions in the law that I have introduced
deals with that public consumption of the product. The way an
audit gets juice and heat behind it is for the public to
understand what has happened.
I was surprised to learn how many agencies did not have the
IG's link on their home page. It is a big problem that you have
to search for Inspector General reports on the Internet, that
they are not immediately available to anyone who wants to see
what the Inspector General has found. And, frankly, they ought
to also put on the home page what the response to that finding
was and whether or not the findings have been addressed.
I notice in some of the testimony that we are going to hear
today that there is talk about potential savings that have
occurred. Well, ``potential'' is not a good word for an
auditor. We want to be much more exact than ``potential.''
I think we need to begin to turn the page on accountability
on the Inspector General corps and say to the agencies in a
public way, ``You must tell us if you have, in fact,
implemented the findings of your Inspector General. And if not,
why not?'' That is an important part of this public
accountability piece that the Inspectors General represent.
I have had the opportunity to read hundreds of pages of IG
reports and GAO reports since I have been here. My staff
accuses me of being a little weird because I like to read IG
reports and GAO reports. I would rather read that work than any
other work that they bring to me. As I read them, I am struck
by the level of professionalism that we have in the Federal
Government in this area.
There are some bad apples, and I think the legislation that
the Ranking Member has proposed and the legislation that I have
proposed try to get at a system where the bad apples are easily
discovered and easily removed from the orchard so that we can
celebrate the professionalism of the Inspectors General within
the Federal Government and the very important work they do.
I thank you all for being here today and for your
testimony, and I look forward to an opportunity to ask
questions.
Thank you, Mr. Chairman.
Chairman Lieberman. Thanks, Senator McCaskill. I want to
certify for the record that in the time I have known you, I
have never thought of you as ``weird.'' [Laughter.]
Senator McCaskill. Thank you.
Chairman Lieberman. Incidentally, I do want to say that
Senator Collins and I and this Committee like to legislate. We
feel we have a responsibility to legislate when there is a need
to do so. So I want the witnesses to know that your testimony
is important to us because both in the proposal of Senator
Collins that I am privileged to cosponsor and Senator
McCaskill's legislation, there are recommendations for
legislative changes that relate to the IGs. And we are going to
move ahead this year and try to mark those up, so your
testimony will have direct relevance to that.
Our first witness is Clay Johnson III, Deputy Director for
Management of the Office of Management and Budget. This
position--I believe in Administrations before this one as
well--has been the one--certainly in this one--that has tended
to be the coordinator and overseer and including some Committee
responsibility for the Inspectors General. So, Mr. Johnson, I
thank you for being here, and we welcome your testimony now.
TESTIMONY OF HON. CLAY JOHNSON III,\1\ DEPUTY DIRECTOR FOR
MANAGEMENT, OFFICE OF MANAGEMENT AND BUDGET
Mr. Johnson. Mr. Chairman, Senator Collins, Senator Akaka,
Senator McCaskill, thank you for having me up here. I am, by
Executive Order, the Chair of the President's Council on
Integrity and Efficiency (PCIE) and the Executive Council on
Integrity and Efficiency (ECIE). Also, by statute or Executive
Order, I am the Chair of the CFO Council, and the CIO Council.
I am the Vice Chairman of the Chief Human Capital Officer
Council. I am the Chair of the Chief Acquisition Officer
Council. I am involved in a lot of different entities in the
Federal Government whose job it is to make sure that the money
is well spent, that we get what we pay for.
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\1\ The prepared statement of Mr. Johnson appears in the appendix
on page 37.
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Chairman Lieberman. Tell us just for a moment about PCIE
and ECIE, what they are, for the record.
Mr. Johnson. They were created by Executive Order, I think
in 1996, by President Clinton. The PCIE is a council or
association of the Senate-confirmed, presidentially appointed
IGs for the larger agencies. I think there are 26 of them. Then
the ECIE is the same thing for the not-presidentially appointed
but the head-of-agency appointed IGs, the smaller agencies. And
it is the entity by which they come together and look at common
opportunities, common problems, training, orientation,
legislation, that sort of thing. And my involvement is I am the
Chair and the person that really runs each of those is the vice
chair of each of them--who is an IG--and I used to think that
my involvement was largely non-substantive until the last year
or year and a half, and it has become a significant part of
what I do because of all these issues that you are talking
about here in this hearing.
My association with the IGs is something I enjoy as much as
anything I do. There has been reference here to the quality and
quantity of the work of the IG community, and it is superb. And
I really enjoy being associated with it. I like fixing things.
I like bringing order to chaos and method to madness, and that
is what IGs do. And we want the money to be better spent. We
want to achieve desired goals.
You talk about liking to legislate. What we like doing in
the ``M'' world at OMB is we like to take the policies that
have been agreed to and the money that has been appropriated
and make sure that the money is well-spent to implement the
policies to achieve the desired outcomes. And the CFOs, CIOs,
etc., and the IGs help do that.
You talked about how important the IGs are to the
Legislative Branch. They are equally important to the Executive
Branch. They are the means by which the heads of agencies
understand what is not working as well as it should or as well
as desired in their agencies, and so energies can be focused on
fixing those things.
I look forward to working with you on all the different
legislation that has been proposed to see if there are
opportunities to make the IG community create the potential for
it to be even more effective. Some parts of the legislation I
disagree with. Some I agree with. Some I agree with the goal
but think there might be a different way of doing it. My
general statement is: I agree with the findings of the report
by the General Accountability Office when they had their open
forum, I think last fall or some time, that report, I agree
with the findings there.
One of the things I would like to comment on here at the
beginning is about trying to guarantee certain things for the
IG community, guaranteeing certain levels of independence,
guaranteeing a certain relationship between the agency head and
the IG. And I do not think we can legislate a level of
independence or we can legislate a relationship between an
agency head and an IG. It is just impossible.
I think the key is that we are very clear about what we
expect IGs to do, that there are high levels of accountability,
there is a lot of clarity, that we want lots of--the numbers
that were quoted here earlier, $9 billion and $8 billion. We
want lots of identification of waste, fraud, and abuse, lots of
recommendations about how to fix it, lots of follow-through on
whether agencies, in fact, did what they said they were going
to do and so forth. We need lots and lots of that. We need lots
of transparency, lots of assurance that is happening.
I think we need a very clear definition of--not
prescriptively, but in general--what we think an effective
working relationship is between an IG and an agency and what is
the desired relationship, what is too much dependence, too much
independence. And then I think we need to hold IGs and agency
heads accountable for accomplishing those goals.
That is the way we achieve desired outcomes as opposed to
trying to guarantee in legislation that a level of independence
will be this and not this.
There are mechanisms in place--the Integrity Committee,
hearings, notification of Congress, and so forth--that
guarantee that if an agency head or an IG gets off base, there
are mechanisms that bring that to everybody's attention to get
it back on track.
If we are not having those hearings, if we are not finding
that people are challenging the nature of an IG and agency head
relationship, something is wrong, our IGs are not being
aggressive enough, our agency heads are being too compliant,
and so forth.
So let's not be surprised if we waver off track here on
occasion. That happens when people are involved, and the key is
are there mechanisms in place to bring it to everybody's
attention very quickly so we can get it back on track.
In general, I believe that it is important that IGs not be
feared by their agency heads. As David Walker said, their goal
at GAO is to be respected, not feared. I do not like the idea,
as Mr. Devaney points out in his written testimony, of the dog
metaphors, but it is important that IGs not be lapdogs or
junkyard dogs. And I think it is very important that
independence be primarily a focus of what the findings of an IG
are, not what kind of personal relationship they have with the
agency head. I know two really well-respected IGs, and one
would not be troubled by going to the agency head's Christmas
party. The other one would not think of going to the agency
head's Christmas party. And yet they are both exceptional IGs.
That says to me that how they manifest their dependence or
independence of the agency head has little to do with the
quality of their work.
Anyway, those are my comments. Sorry I ran long, but it is
with great honor that I am here to talk to you about these IGs
and to work with you subsequent to this hearing on the
legislation that we will be considering.
Chairman Lieberman. Thank you, Mr. Johnson. That is a good
beginning, and I know we will have questions for you.
Next is the Hon. Glenn Fine, Inspector General of the
Department of Justice. Thanks for your good work, and welcome.
TESTIMONY OF HON. GLENN A. FINE,\1\ INSPECTOR GENERAL, U.S.
DEPARTMENT OF JUSTICE
Mr. Fine. Thank you. Mr. Chairman, Senator Collins, Members
of the Committee, thank you for inviting me to testify at this
hearing as the Committee considers how to strengthen the
independence and accountability of Inspectors General.
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\1\ The prepared statement of Mr. Fine appears in the appendix on
page 39.
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IGs are given broad authorities to perform a challenging
job, and I believe that, overall, most IGs have performed their
responsibilities independently and effectively. But I believe
that it is useful to regularly assess IG authorities,
performance, and accountability, particularly because of the
importance of their work and the impact they can have
throughout the government.
In my testimony today, I will discuss my personal views on
the proper role of an effective Office of Inspector General.
Next I will comment on various proposals to strengthen the role
of IGs, including proposed amendments to the IG Act. Finally, I
will briefly discuss a limitation on the jurisdiction of the
Justice Department OIG that I believe is inappropriate and
should be changed.
First, with regard to the role and attributes of an
effective IG, the IG Act notably describes our offices as
``independent and objective'' units within Federal agencies.
This is a critical requirement for an Inspector General. We
must be and we must be perceived as both independent and
objective. While OIGs are part of their agencies, we are
different from other components within the agency. For example,
while we listen to the views of the agency and its leadership,
we make our own decisions about what to review, how to review
it, and how to issue our reports.
At the DOJ OIG, we independently handle contacts outside
the agency, such as communicating with Congress and the press
separately from the Department's Offices of Legislative and
Public Affairs.
An important role for an Inspector General is to provide
transparency on how government operates. At the DOJ OIG, we
believe it is important to release publicly as much information
about our activities as possible, without compromising
legitimate operational or privacy concerns, so that Congress
and the public can assess the operations of government.
An Inspector General also must be tenacious. It is not
enough to uncover a problem, issue a report with
recommendations, and move on to the next topic. We must
continue to examine critical issues again and again in order to
gauge the agency's corrective actions and improvements over
time.
In carrying out our responsibilities, we also must
recognize that the job of an IG is not designed to make us
popular. I am sure that I am not the most popular person in the
Justice Department. However, I hope our work is respected and
that we are viewed as being tough but fair.
By the nature of the role, IGs cannot please everyone, nor
should we try. We regularly are accused of being either too
harsh or too soft, of acting like junkyard dogs or lapdogs, of
being out to ``get'' someone or out to ``cover up'' a problem,
of engaging in a witch hunt or a whitewash. Sometimes we are
described in each of these ways by different sides in the same
matter. Ultimately, our goal should not be focused on whether
our work makes our agency look good or bad, but whether we help
improve its operations. Our role is to be independent, to
objectively identify problems, and to provide effective
solutions to correct deficiencies.
To be an effective IG, it is important to develop a
professional working relationship with agency leadership. I
have been fortunate to have professional relationships with all
of the Department leaders during my tenure. Since I have been
the IG, the Justice Department has had three Attorneys General
and four Deputy Attorneys General--all of whom have appreciated
the importance and difficulty of the OIG's work. I met with
them on a regular basis, but none of them ever attempted to
direct or interfere with our work. They recognized that, to be
effective and credible, the OIG had to be scrupulously
independent in how we conducted our work and reported our
findings.
In general, I believe the IG Act has worked well and
provides IGs with the tools and independence necessary for us
to perform our mission. Nevertheless, I believe it is useful to
examine proposals to strengthen the role of Inspectors General,
and I appreciate this Committee's willingness to consider that
topic.
I will now turn to various proposals that have been
advanced to amend the IG Act and will offer my personal view on
additional changes I believe the Committee should consider.
One proposed change to the IG Act would provide Inspectors
General a fixed term of office, subject to possible
reappointment, and removal during that term only for cause. In
my mind, the need for and benefits of this change is a close
question. The change seeks to strengthen the independence of
IGs by giving them more job security. However, I do not believe
that the threat of removal currently undermines the
independence of IGs or the willingness of IGs to address the
hard issues or to confront their agencies when necessary.
In addition, the proposal could create a different problem.
If an IG seeks reappointment near the end of his or her term of
office, he or she would be dependent on the recommendation of
the agency head, which could create both a conflict and an
appearance of a conflict. While I agree that ensuring the
independence of IGs is critical, I am not convinced that this
proposed change would accomplish that important goal without
creating additional problems.
I believe that the most important issue that can directly
undermine the effectiveness of IGs relates to the adequacy of
resources. On the whole, I believe that OIGs have been
underfunded, particularly when compared with the growth of our
agencies and the increased demands placed on us. While the size
of OIGs have remained flat, our agencies and our
responsibilities have grown dramatically. I believe that with
the added responsibilities and the growth of the agencies, OIGs
should receive a commensurate increase in resources, which has
not happened.
I am proud of the work of OIG employees and their
dedication in handling their many important assignments. But
our resources are significantly constrained, and I am concerned
that inadequate resources can affect both the thoroughness and
timeliness of projects that are by necessity staffed more
thinly than warranted. While I recognize that this Committee
cannot solve the resource issue on its own, I agree with the
proposal to allow OIGs to submit their budget requests directly
to OMB and Congress and to independently make the case for
resources.
As discussed in my written statement in more detail, I also
support other proposed changes to the IG Act, such as providing
a dedicated source of funding for the IG training academies,
addressing the issue of IG pay, which has lagged significantly
behind the salaries of other Federal employees, and amending
the IG Act to allow ECIE IGs to petition the Attorney General
for statutory law enforcement powers.
Finally, in line with the intent of this hearing to
consider ways to strengthen the role of Inspectors General, I
want to raise an issue that affects the Justice Department OIG
only, but which I believe is a critical issue that contravenes
the principles and spirit of the IG Act. Unlike all other OIGs
throughout the Federal Government who can investigate
misconduct within their entire agencies, the Justice Department
OIG does not have complete jurisdiction within the Department.
We do not have the authority to investigate allegations against
DOJ attorneys acting in their capacity as lawyers, including
such allegations against the Attorney General, Deputy Attorney
General, or other senior Department lawyers. Instead, the DOJ
Office of Professional Responsibility (OPR) has been assigned
jurisdiction to investigate such allegations.
As I discuss in my written statement, the limitation on the
Justice Department OIG's jurisdiction arose from the history of
the creation of OPR and the OIG, and now only Congress can
change it. For several reasons, I believe Congress should
remove the limitation of the Justice Department OIG's
jurisdiction.
First, the current law treats DOJ attorneys differently
from all other DOJ employees and from all other Federal
employees, all of whom are subject to the jurisdiction of their
agency's OIG. No other agency has a group of its employees
carved out from the oversight of the OIG.
The limitation on the Justice Department IG can create a
conflict of interest and contravenes the rationale for
establishing independent Inspectors General throughout the
government. This concern is not merely hypothetical. Recently,
the Attorney General directed OPR to investigate aspects of the
removal of U.S. Attorneys. In essence, the Attorney General
assigned OPR--an entity that does not have statutory
independence and reports directly to the Attorney General and
Deputy Attorney General--to investigate a matter involving the
Attorney General's and the Deputy Attorney General's conduct.
The IG Act created OIGs to avoid this type of conflict of
interest.
In addition, while the OIG operates transparently, OPR does
not. The OIG publicly releases its reports on matters of public
interest, but OPR does not release its reports publicly.
Finally, dividing oversight jurisdiction within the Justice
Department between the OIG and OPR is inefficient and
duplicative.
In sum, I believe that the current limitation on the
Justice Department OIG's jurisdiction is inappropriate,
violates the spirit of the IG Act, and should be changed. Like
every other OIG, the Justice Department OIG should have
unlimited jurisdiction within the Department. I believe
Congress should amend the IG Act to give the Justice Department
OIG that authority.
In conclusion, I appreciate the Committee's willingness to
hold this hearing. Inspectors General perform a valuable and
challenging service, but we, like our agencies, should always
consider ways to improve. Thank you for examining these issues,
and thank you for your support of our work.
That concludes my statement, and I would be happy to answer
any questions.
Chairman Lieberman. Thanks, Mr. Fine. Very interesting
statement. Again, we look forward to some questioning.
Next is Hon. Earl Devaney, Inspector General of the U.S.
Department of the Interior. Welcome, and please proceed.
TESTIMONY OF HON. EARL E. DEVANEY,\1\ INSPECTOR GENERAL, U.S.
DEPARTMENT OF THE INTERIOR
Mr. Devaney. Mr. Chairman and Members of the Committee, I
want to thank you for the opportunity to address the Committee
this morning about several emerging issues that affect the
unique role played by Inspectors General. My hope is that we
will have ample time for a long overdue dialogue this morning
about these important issues. I also want to make it clear that
my testimony today reflects my own views, which may or may not
be shared by my colleagues.
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\1\ The prepared statement of Mr. Devaney appears in the appendix
on page 55.
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Mr. Chairman, I believe that the original IG Act and its
subsequent amendments have effectively stood the test of time
and have served the American public well. I do not think that a
wholesale change of the Act is necessary. That having been
said, however, I believe that there are a number of
improvements that could be made to enhance the effectiveness
and the independence of IGs. In particular, I would like to
offer my thoughts about IG independence, IG pay, and IG budget
submissions.
Committee staff has informed me that you would also like to
hear my views on the appropriate relationship between the IGs
and their agency heads and the role that the Integrity
Committee, established in 1995 by a Presidential Executive
Order, plays in ensuring that ``someone is watching the
watchers.''
Since I have experienced both difficult and excellent
relationships with the Secretaries I have served with during my
8-year tenure at the Interior Department and since I have been
a member of that Integrity Committee for over 5 years, I am in
a position to informatively discuss these issues, and would be
pleased to do so.
I believe that an independent IG is someone who possesses
both integrity and courage. I personally define integrity as
not only being truthful and honest but consistently doing the
right thing for the right reasons. Courage is easier to define,
but in this context I am talking about the ability to ``speak
truth to power.''
Given the dual reporting obligation that IGs have to both
the Congress and the agency head, making somebody unhappy is
not difficult to do. In fact, trying to make everybody happy is
the fastest way I know of for an IG to get into trouble. Of
course, it goes without saying that IGs should be selected
without any regard to political affiliation and solely on the
basis of demonstrated integrity and professional abilities
related to the roles and responsibilities of this position.
For instance, when I was appointed as an Inspector General,
I had nearly 30 years of Federal law enforcement experience,
and no one involved in my nomination process ever inquired
about my political affiliation. Far too often, IGs are
characterized as either being lapdogs or some type of attack
dog. And as Mr. Johnson stated earlier, I reject that premise
that either is a desirable trait of an independent IG, and I do
not like the indignity of being compared to a dog on a regular
basis.
My own view is that an independent IG needs to strike a
balance between being tough on the Department, when called for,
and being equally willing to stand up and say that a particular
program is running well or that allegations against a senior
official are unfounded, when the facts warrant such
conclusions. At the end of the day, an IG who consistently
proffers professional, fact-based audits and/or investigations,
without regard to whom they might offend, will end up meeting
the standards of independence that the IG Act envisioned and
that the American public deserves.
Mr. Chairman, several pieces of pending legislation in both
the Senate and the House would attempt to enhance IG
independence by adding a specified term of office for an IG and
a removal-for-cause provision. Personally, while I have no
objection to these proposals, I do not think that they would
either enhance or detract from my own ability to act
independently. I am, however, attracted to the idea that the
President should have to provide Congress with prior written
notification together with an explanation of the reasons behind
the removal of any IG. A reasonable time frame of 30 days would
give Congress the opportunity to enter into a discussion with
the Executive Branch concerning the circumstances of any
removal.
Of greater concern than removal, perhaps, is the
recruitment and retention of highly qualified IGs. There is a
huge pay disparity affecting the presidentially appointed and
Senate-confirmed (PAS) IGs that needs to be corrected as soon
as possible. I cannot overstate the effect this is having on IG
morale, the long-term ability to attract the best candidates
for IG positions, and the near-term potential for losing some
of our best IGs. PAS IG salaries are currently capped by
statute at Level IV of the Executive Schedule, currently
$145,400, and are appropriately excluded from the bonus
benefits of the performance-based pay system Congress
established with the passage of the 2004 Defense Authorization
Act for career SES. Of course, PAS IGs have, as a matter of
practice, chosen not to accept bonuses from agency heads since
the early 1990s to further preserve their independence. As a
result, virtually all PAS IGs are paid at a level significantly
below the average annual compensation of the SES personnel they
supervise--currently capped at $168,000, excluding bonuses.
Retirement annuities are equally affected. Considering that
the average salary of a SES in fiscal year 2005 was $150,000,
and the average SES bonus was $13,814, IGs frozen at the ES-IV
level stand to make, on average, over $19,000 less than the
average career SES member. Practically speaking, this results
in both present and future IGs drawing lesser salaries than
many of their SES subordinates. In my case, three of my seven
SES subordinates earned more compensation than I did in fiscal
year 2006. Obviously, this disparity is a significant concern
for current PAS IGs and could soon have an adverse effect on
the government's ability to retain its best and most
experienced IGs.
Perhaps more importantly, however, is the impact this pay
disparity has on the willingness of qualified and talented
Federal career executives to serve as IGs in the larger and
more challenging Federal departments and agencies. My
understanding is that the Administration expressed a
willingness to support a pay raise for all PAS IGs to Level III
of the Executive Schedule, which currently stands at $154,600.
While this would appear generous, and something for which I and
many other PAS IGs would be most grateful, I would strongly
urge that PAS IG pay be adjusted to mirror the current SES cap
and match any future increases of the SES cap.
Of course, all PAS IGs should, in my opinion, continue to
forego any bonus opportunities and thus would still be left
with lesser compensation than their highest-level, highest-
achieving subordinates. Bridging the significant salary gap to
which PAS IGs are presently subject would enhance the
attraction of IG appointments for the most qualified candidates
and help prevent the most talented sitting IGs from leaving
government service for more lucrative private sector positions.
While I personally have never experienced any problems with
the Secretary regarding my annual budget submission, I can
certainly understand the interest by some of my IG colleagues
in legislation that would have annual IG budgets submitted
directly to OMB and/or Congress. This would have the obvious
benefit of insulating IGs from the potential for many agency
heads to retaliate with personnel or other resource cuts.
Ironically, despite my propensity for upsetting Secretaries, I
have routinely received decent support of my budget at the
Department and OMB level with most cuts coming at the
congressional level. In fact, I have often felt that the
Secretaries I have served with have gone out of their way to
avoid even the appearance of retaliation, regardless of our
working relationship.
This leads me to that relationship. A good working
relationship between an IG and an agency head is essential. The
relationship with the Secretary ought to be built on mutual
respect and trust. An IG must be independent, but should never
blindside or surprise the Secretary. I have always pledged not
to surprise any of the three Secretaries with whom I have
served and, to my knowledge, none has ever been caught unaware
by the findings of our audits or investigations. While more
than one Secretary has occasionally requested that I tone down
my rhetoric, none has ever tried to tell me what to say.
IGs are also responsible to do more than simply identify
problems, but rather achieve that balance between criticism and
commendation, which I spoke of earlier. Audits, to the extent
possible, should highlight Department successes and be as
solution-based as auditing standards allow. For example,
because most problems we encounter are not unique to the
Department of the Interior, my audit teams routinely include
best practices from other Departments or the private sector in
their audit recommendations. Our investigations often present
an opportunity to inform the Department of how to prevent the
reoccurrence of a problem. My view is that IGs have an equal
duty to prevent fraud, waste, or abuse as they do in detecting
it.
My office's role in the 4-year task force investigation of
the Abramoff scandal profoundly tested my relationships with
two Secretaries. Quite understandably, my relationship with
former Secretary Norton was negatively affected by the two
separate investigations of Deputy Secretary Griles conducted by
my office and our FBI partners, although I will allow his
recent conviction and pending prison term to speak to the
efficacy of those endeavors.
While Secretary Norton and I disagreed about virtually
everything concerning Mr. Griles, my relationship with
Secretary Norton remained professional. On the other hand,
Secretary Kempthorne has used this unfortunate scandal as an
opportunity to foster an increased awareness and emphasis on
ethics and integrity at the Department. I am impressed with his
leadership in this area, and I believe that he and I have
achieved the desired level of respect and trust for each other.
Secretary Kempthorne has also come to understand that he can
count on me to provide him with the facts, whether good or bad,
which in turn helps him avoid the risks inherent in the
tendency of well-meaning subordinates to overemphasize the
positive. He and I both understand that it is not an IG's job
to tell an agency head what he or she wants to hear but,
rather, what he or she needs to hear.
As I mentioned earlier, I have served on the PCIE/ECIE
Integrity Committee for over 5 years. Although I have dropped
several hints that my time on this Committee has been served, I
have not found any of my colleagues eager or willing to take my
place. The truth is that no one could possibly enjoy sitting in
judgment of one's peers; it can be a very difficult role to
play. That having been said, I can, without reservation,
commend to you each individual that I have served with on this
Committee. To a person, they have been highly professional,
impartial, and interested only in arriving at the truth of each
matter that has come before us.
I would remind you that the Committee is always chaired by
the FBI Assistant Director of Investigations, staffed by career
FBI agents, and its members consist of three IGs and the
Directors of the Office of Government Ethics and the Office of
Special Counsel, and a staff member of the Public Integrity
Unit attends each meeting in an advisory role.
As I noted earlier, an Executive Order created this
Committee in 1995, with a principal mandate of adjudicating
allegations of wrongdoing against IGs. It is important to
understand that every allegation is first screened by the
Public Integrity Unit for criminal consideration. If that
allegation does not rise to the level of a potential crime, it
is then forwarded to the Integrity Committee for administrative
review.
From 1997 through June 30, 2007, the Integrity Committee
has received 387 complaints against IGs. Of those 387
complaints, only 17 have resulted in the Committee ordering a
full administrative investigation, usually conducted by another
IG's office.
Mr. Chairman, I have had a long and rewarding career in the
Federal Government. My years as IG of the Interior Department,
however, have been at once the most challenging, the most
frustrating, and the most gratifying. I sincerely believe in
the critical importance of the work IGs do, and I appreciate
the interest that you and other committees in both the Senate
and the House have shown in the work of my office and that of
my colleagues.
This concludes my written statement. I would be glad to
answer any questions.
Chairman Lieberman. Thanks very much, Mr. Devaney. Very
helpful statement. Thanks for your public service. I couldn't
help but comment to Senator Collins when you made the
understandable statement that an IG should not be considered as
either a lapdog or an attack dog that if we compared public
opinion of the Federal Government with public opinion of dogs
in general, I would say that the canines are ahead. [Laughter.]
So I will thank you and Mr. Fine here for your doggedness,
in the best sense of that term.
The next witness is Eleanor Hill, a very familiar and
respected person here. It is great to welcome you back here
today in your capacity as a former Inspector General of the
Department of Defense, a distinguished record of public
service, which in the contemplation of this Committee reached
its height when you were a Staff Director of the Permanent
Subcommittee on Investigations of this Committee under the
chairmanship of our distinguished former colleague and dear
friend, Sam Nunn.
So, Ms. Hill, it is good to see you, and we welcome your
testimony.
TESTIMONY OF HON. ELEANOR J. HILL,\1\ FORMER INSPECTOR GENERAL,
U.S. DEPARTMENT OF DEFENSE
Ms. Hill. Thank you, Mr. Chairman. It is especially great
to be here this morning. Senator Collins, Senator McCaskill,
Members of the Committee, good morning. Thank you for the
opportunity to discuss the role of IGs in promoting good
government.
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\1\ The prepared statement of Ms. Hill appears in the appendix on
page 63.
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As you mentioned, I have had a long career in public
service. It was a great privilege for me to be in public
service for all those years, including my tenure as IG of the
Department of Defense and also as the Vice Chair of the PCIE.
But as the Chairman mentioned, I have to say I am especially
pleased to be here today. This room holds many fond memories
for me because of my long years of service with the Permanent
Subcommittee on Investigations. I have great respect and
appreciation for the work not only of that Subcommittee but
also of this Committee. And so thank you again for the chance
to return here this morning.
My experience in government has convinced me that the
statutory IGs play an absolutely critical--and unique--role in
our Federal system. In creating IGs, Congress was driven by a
need to provide objective, independent, and professional
oversight on a sustained basis throughout the incredibly vast
and complex operations of the Federal Government. In today's
world, where new issues and new technologies further complicate
those operations, the IGs, with their focused, professional
expertise regarding Federal programs, are perhaps more
important than ever before.
Although the IG concept originated in the military context
in 17th Century Europe and, as the Chairman mentioned, was
brought to this country in the form of Baron von Steuben, the
idea of a truly ``independent'' Inspector General, as we know
them today, is a relatively recent modern phenomenon. Congress,
and the IG Act of 1978, went far beyond the traditional
military concept in creating IGs within Federal agencies and
departments. The biggest and most critical difference is that
military IGs continue to work within their chain of command.
They do not have the statutory independence that set the
Federal IGs completely apart, in my view, from other military
and departmental oversight mechanisms.
My work at the Pentagon when I was the IG with the military
IGs brought home to me the importance of independence. Military
IGs often requested that our office conduct top-level,
particularly sensitive investigations since they did not
believe that they had the independence needed to conduct an
investigation that would both be and appear to be objective.
I had similar conversations with some Defense agency IGs,
who also are appointed and serve at the pleasure of their
directors, without statutory independence. Those IGs recognized
that in investigations of very senior officials or in audits of
programs dear to the agency head, the statutory independence of
a departmental IG is key 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 could not help but recall those conversations when I read
reports last year that oversight of what has been termed the
National Security Agency's ``terrorist surveillance program''
had been handled by the NSA IG, who has limited resources and
no statutory independence, and not by the Department of Defense
IG. In my view, that is exactly the kind of program where the
oversight should have been conducted, from the very beginning,
by the independent departmental IG.
All of this underscores the fact that, more than anything
else, independence goes to the heart of the IG mission. It is
what makes IGs a critical and a unique link in ensuring
effective oversight by both the Executive and the Legislative
Branches. The IG Act provisions make the IG the most
independent and the most unfiltered voice below the Secretary
in any Federal department.
As one example, IG testimony to Congress, unlike that of
other Executive Branch officials, was not--at least in my
experience--edited or approved by non-IG departmental or OMB
officials before being delivered to Congress.
Unfortunately, while the statutory protections for
independence are excellent, they are not foolproof. Not all IGs
felt as secure in their independence as I did. Operating under
the same statute, some IGs are extremely independent while
others have been less so. Other factors do impact independence.
The department or agency head's view of the IG role and the
relationship that develops between the IG and senior management
is especially important. I was fortunate to work under two
Secretaries of Defense who understood, appreciated, and
accepted the role of the IG--Bill Perry and Bill Cohen.
Secretary Cohen, of course, knew well about the IGs from his
service on this Committee as a Senator.
The IG's own experience and background can also be a
factor. I had the benefit of becoming an IG only after being
schooled for years in jobs where independent, fact-driven
investigation was the norm. I was a Federal prosecutor, and I
was a congressional investigative counsel on many inquiries
that followed the strong bipartisan tradition of this
Committee.
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. IGs should be agents of positive change, but they
must insist on doing so in an environment where independence is
understood and respected. Congress must ensure, during the
confirmation process, that those who would serve as the
department or agency head and as IGs understand the IG mission
and the statutory independence on which it rests. The success
of the statute, the process, and the mission depends to a large
degree on the quality and the judgment of the people entrusted
with those positions.
Congress itself also plays an important role in assuring
independence, excellence, and effectiveness for the IGs. During
my term as Defense IG, various congressional committees were
extremely interested in what our OIG was doing in terms of
oversight. Congress needs to maintain focus on what IGs are
doing and what it is that they are--or are not--finding. Both
our OIG and the senior management of the Department of Defense
were very aware of the congressional interest in our work. In
those circumstances, it would have been very difficult for
management to undercut our independence without incurring the
wrath of those committees--something which most departments
clearly want to avoid.
At its core, the IG Act relies on the tension that usually
exists between Congress and the Executive Branch to reinforce
and protect IG independence. For the concept to work, Congress
has to be an active player, remaining alert to IG findings and
fully engaged in exercising its own oversight authority. In my
mind, that is perhaps the single biggest non-statutory factor
that impacts IG independence.
Congress has to be willing to insist on objective oversight
from the IG, separate and apart from the views of any
department and any Administration. When that happens, the IG
must walk a fine line between what may be the very different
views of Congress and the Department. The overwhelming
incentive in those circumstances is for IGs to resist attempts
at politicization from either side. The best way to succeed
when answering to these two masters is to conduct independent,
professional, and fact-based inquiries--which is, of course,
what we want IGs to do.
Some have suggested additional ways to strengthen the IGs,
and both Senator Collins and Senator McCaskill have mentioned
their proposals. Generally, I support all reforms that are
designed to bolster IG independence, and I have mentioned some
of those in my statement. One example, for instance, is that I
very strongly support the idea of the direct transmittal of IG
budget appropriation estimates and requests to both OMB and
Congress because, obviously, it supports and bolsters IG
independence.
I just want to briefly mention accountability. Independence
unquestionably gives IGs a great amount of power, and with that
power comes the responsibility to use it wisely and in keeping
with the highest ethical and legal standards. While we hope
that all IGs take the high road, the system has to be capable
of addressing allegations of abuse of power within the IG
community. The public must be assured that those who enforce
high ethical standards on others are themselves held to those
same standards.
This was a focus of PCIE discussion in the mid- to late-
1990s. In 1995, the PCIE created an Integrity Committee to
review allegations of misconduct by IGs and Deputy IGs. While
well intended, the Committee initiative lacked clear
investigative authority, was limited by insufficient resources,
and encountered recordkeeping problems. Those problems and
increasing public concerns about accountability prompted an
effort to formally address accountability in the Executive
Order that Mr. Devaney mentioned.
Some have now proposed consolidation of the PCIE and the
ECIE into a single statutory council. My experience with the
PCIE was, frankly, mixed. The Federal IG community is large and
clearly not homogeneous. There are huge differences in size, in
capabilities, and in focus among the various IG offices. The
issues that were of paramount importance in some large offices
had little relevance to the smaller ones. Some IGs were very
accustomed to dealing with Congress. Others had relatively
minimal contact.
While the PCIE and ECIE do facilitate communication across
the community and consensus on internal IG issues, it was
difficult in my memory to develop a community position on
important governmentwide issues of effectiveness and
efficiency. Statutory authorization of an IG Council would be a
step in the right direction. Working together, IGs have
tremendous potential for the identification of common
governmentwide problems and the search for common
governmentwide solutions. A statutory mission for the council,
coupled with appropriate funding and resources, could help the
IG community realize that potential.
Any statutory IG Council should also have statutorily
mandated reporting responsibilities, not just to the President,
but also to the Congress. The independence that has been so
crucial to the work of individual IGs should be available to
support independent and professional governmentwide assessments
by an IG Council.
In closing, let me just note that I have been genuinely
dismayed by reports in recent years of less congressional
oversight and less independence and professionalism in the IG
community. As an investigator, I know better than to prejudge
the accuracy of reports without access to all the facts, and so
I do not know to what degree all those reports are true. I can
only say that for the good of the country, I hope they are not.
My own experience over the years has convinced me that the
rigorous but always objective and fair exercise of the
congressional oversight power, bolstered by the work of an
independent and professional IG community, is clearly the
surest way to promote integrity, credibility, and effectiveness
in government. The American people deserve and, quite rightly,
expect no less.
Thank you and I welcome any questions you may have.
Chairman Lieberman. Thank you for a very thoughtful
statement.
Our last witness this morning is Danielle Brian from the
Project on Government Oversight. Tell us what--of course, it is
hard not to notice that it spells POGO.
Ms. Brian. Yes, it does. [Laughter.]
Chairman Lieberman. Which, for those of us of an earlier
generation, brings back happy memories of a particularly astute
cartoon strip.
Ms. Brian. That is not unintentional, the acronym.
Chairman Lieberman. Thanks, Ms. Brian. Welcome.
TESTIMONY OF DANIELLE BRIAN,\1\ EXECUTIVE DIRECTOR, PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Brian. Thank you, Chairman Lieberman and Senator
Collins, for inviting me to testify. We are an independent
nonprofit organization that has for 25 years investigated and
exposed corruption and misconduct in order to achieve a more
accountable Federal Government.
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\1\ The prepared statement of Ms. Brian appears in the appendix on
page 73.
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The subject of this hearing raises a number of timely
issues. IG offices play a tremendously important role in
advancing good government practices, but only if they are led
by independent and qualified IGs and those IGs are allowed to
do their job. Next year will be the 30th anniversary of the
1978 Inspector General Act, and this is the perfect time to
determine the strengths and weaknesses of the IG system.
The intent of Congress in creating these watchdogs--with my
apologies to Mr. Devaney--was to have an office within the
agencies that would balance the natural inclinations of agency
or department heads to minimize bad news and instead give
Congress a more complete picture of agency operations. That
intention is clearly shown by Congress' decision to break with
tradition and create a dual-reporting structure where IGs would
report not only to the agency head, but also directly to
Congress itself.
It is this independence from the agency the IG is
overseeing that gives the office its credibility. Not only the
actual independence, but also the appearance of independence
allows the IG's stakeholders, including the Congress, the
agency head, the IG's auditors and investigators themselves,
and potential whistleblowers to have faith in the office. Over
the past year, POGO has held monthly bipartisan Congressional
Oversight Training Seminars for Capitol Hill staff, and we
regularly tell participants that the IGs at agencies within
their jurisdiction can be important allies and sources of
honest assessments. Unfortunately, we also have to point out
that not all IGs are well qualified or appropriately
independent.
I have the honor today of sitting on this panel with model
Inspectors General. However, in the past few years, the ranks
of the Nation's IG community have not always been filled with
such stars. Investigations of the current NASA IG and former
Commerce, Postal Service, and HHS IGs have substantiated
allegations of improper conduct by those offices. Some of the
types of improper conduct included illegal retaliation against
IG employees, not maintaining the appearance of independence
required of an IG, and interfering with IG investigations.
At the same time, several IGs have suffered retaliation for
doing their jobs too well. In addition to the formerly
mentioned Smithsonian IG, the Special Inspector General for
Iraq Reconstruction, the GSA and Legal Services Corporation
IGs, as well as the former Homeland Security IG, have all
suffered some form of retaliation--ranging from budget cuts by
their agencies to personal attacks and even threats to
eliminate their office entirely.
The House Committee on Oversight and Government Reform has
created a Fact Sheet outlining these instances, and I request
that it be submitted for the record.\1\
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\1\ The Fact Sheet appears in the Appendix on page 76.
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Chairman Lieberman. Without objection.
Ms. Brian. While POGO believes improvements can and should
be made to the IG system and we applaud the Committee for
holding this hearing, any changes to that system need to be
very careful and deliberate. The balance between independence
and accountability is a difficult one to maintain. On the one
hand, an IG must be afforded the opportunity to pursue audits
and investigations without fear of reprisal. On the other,
there needs to be enough accountability that an IG does not
pursue a partisan agenda or become otherwise ineffective. Every
legislative change needs to be considered through both prisms
to ensure it does not have unintended consequences.
POGO is in the beginning stages of a major investigation
into the IG system to determine best practices as well as
weaknesses. There are significant unanswered questions, one of
which is the question of who is watching the watchdogs, and we
look forward to presenting you with our findings in the future.
There are, however, a few improvements to the system that we
have already determined make good sense.
The first is to better ensure that people chosen to be IGs
are of the caliber of those sitting on this panel. The recent
improper conduct to which I referred above has made it clear
the process of selecting IGs, unique people who can thrive in
the unpopular job of being an Inspector General, perhaps needs
to be improved. During the Reagan Administration, a small group
of IGs from the PCIE used to recruit and screen IG nominees.
They then supplied lists of candidates from which the White
House could select. This peer review helped ensure that
unqualified or partisan people were not placed in the role of
IG. Congress should consider recreating and formalizing that
model.
The second improvement is that presidentially appointed IGs
should have their own General Counsel's office. While most do,
we know of at least one that does not--the Department of
Defense IG. As a result, the DOD Office of Inspector General
has relied on lawyers assigned to it by the Pentagon's General
Counsel for legal advice. You can see how this could
significantly undermine the independence of an IG: A General
Counsel's role is to protect the agency, whereas an IG's role
is to investigate it if need be. Furthermore, General Counsels
have the power to undermine IG investigations because they
affect such decisions as criminal referrals and what to redact
from documents released through FOIA.
I realize that for many of the smaller ECIE IGs, having
their own General Counsel might double the size of their office
and could unnecessarily create a new bureaucracy. One solution
to this dilemma might be to allow small ECIE IGs to use the
General Counsel's office of a PCIE IG for necessary legal
resources, or perhaps to create a General Counsel's office to
be shared by the smaller ECIE IGs, rather than turning to the
counsels of their own agency.
Another improvement, and a way to mitigate any possible
bias caused by being appointed by the President or agency head,
is to create a term of office longer than 4 years and to
stipulate that an IG can only be removed for specific cause. I
respect and understand the point that Mr. Fine made on this
that it does raise important questions, but our concern and our
support of this idea is focused more on the IGs that enjoy
less--that have a weaker stature within their agency or in the
public eye or in the Congress than those IGs that are here.
There are many IGs that do not enjoy the kind of strength that
the IGs here have, and we are concerned about those IGs in
particular with this provision.
A further improvement is to allow IGs to submit their
budgets directly to both OMB and Congress, and we absolutely
support that, especially because it will ensure for Congress
that the IG's budget is commensurate with the size of the
agency they are overseeing.
Finally, it is clear that IGs need to be paid in accordance
with their position of responsibility. There are a number of
problems with the pay system for both PCIE and ECIE IGs, which
have been discussed, but it appears fixing the pay problems
would be more akin to housekeeping than significantly changing
policy and should be addressed quickly by the Congress so that
these issues do not dissuade good and qualified people from
becoming IGs.
Legislation introduced by Senator Collins, Senator
McCaskill, and Representative Jim Cooper are all important
steps toward making the IG system stronger. Even with the
perfect legislation, however, the IGs will only thrive when the
relevant congressional committees are actively engaged with
their offices and regularly ask them to report on their
findings. I look forward to presenting you with POGO's
investigative findings once they are complete and to working
toward implementing these recommendations.
Thank you.
Chairman Lieberman. Thanks, Ms. Brian.
There is a vote that apparently will go off around 11:30
a.m., so I would like to limit our questioning to 5 minutes
each so each of us can get a chance before we have to go.
Ms. Brian, let me briefly start with you. You cited an
interesting earlier practice in your testimony under which the
PCIE would prepare a list of qualified candidates for IG
openings, and then the selection would be made from that list.
Is your suggestion of that based on a concern that in recent
times the IGs have either been less qualified or less partisan
than you would like them to be?
Ms. Brian. Or perhaps more partisan I think is the concern.
There have been a couple----
Chairman Lieberman. Excuse me. I do mean ``more partisan.''
Ms. Brian. There have been a few instances where there
really are questions about the qualifications of the IGs that
were appointed and whether their appointment was more because
of relationships they had with the White House or people in the
Administration than their real qualifications for the job.
Chairman Lieberman. Yes. So, in fairness, it may not, as
your answer suggests, be partisanship so much as lack of
independence.
Ms. Brian. Yes, absolutely right.
Chairman Lieberman. Right. Three of the witnesses--Mr.
Fine, Mr. Devaney, and Ms. Brian--have commented on the idea of
a fixed term for the IGs as a guarantee of independence. Ms.
Hill and Mr. Johnson, I wanted to ask you if you have an
opinion on that.
Ms. Hill. Mr. Chairman, I have said that I would support a
fixed term. I agree with Mr. Fine that there are pluses and
minuses to it. The obvious minus is if you get someone in there
that is not very good, you are going to have that person in
there for a while. But I believe that a fixed term, coupled
with termination for-cause in the statute so that there is some
guidance as to what grounds you would have to have to terminate
somebody, would bolster independence. I would support that.
Chairman Lieberman. Right. Mr. Johnson.
Mr. Johnson. I am opposed to the idea of a fixed term and
the idea of dismissal for cause only. The reasons, the causes
that have been suggested would not have applied to any of the
IGs that people have been suggesting be replaced. The GAO
assembled that group of people several months ago. It was the
opinion of the vast majority of these very informed people in
this forum that a term accomplished nothing, in fact, it might
even be dysfunctional.
The key is that there be accountability for performance. We
talk about the potential for this and the potential for that. I
do not think anybody is suggesting that, in fact, there is not
independence of findings in what the IGs are doing. We talk
about there have been allegations of dependence or not enough
independence, but there has never, to my knowledge, been a
finding by the Integrity Committee or any other entity that, in
fact, we haven't had fully independent investigations by the
existing IG community. And I do not think that there is a
problem that warrants a term, and I think it is the opinion of
the vast majority of the people that have looked at it that a
term and a listing of causes buys you anything.
Chairman Lieberman. Thanks. Mr. Fine, let me----
Ms. Hill. Mr. Chairman, can I just add to that point? I
think independence does not just go to findings. It also goes
to the willingness to initiate the investigation and cover all
the issues.
Chairman Lieberman. Right.
Ms. Hill. And as I mentioned, the NSA case is an example of
where there was apparently not sufficient independence to
conduct that kind of oversight.
Chairman Lieberman. That is an important point.
Mr. Fine, you cite in your testimony this anomaly in the
law that prohibits you from investigating lawyers at the
Department of Justice, and you recommend that we eliminate that
exception, which makes them the only group so protected in any
agency.
From my point of view, you make a very strong argument. I
am interested to ask you the kind of question my law professors
used to ask me. What is the argument on the other side?
Mr. Fine. I think the argument on the other side is that
lawyers are different. They have specialized duties, and you
need a special office to look at the conduct of lawyers. And
you do not want to chill the conduct of lawyers by being too
aggressive about your oversight of them. In addition, it has to
do with the historical practice, and OPR has existed for a
while and has experience in this realm.
I think those arguments are not persuasive. They remind me
of the arguments that had to do with our jurisdiction over the
FBI. We originally did not have jurisdiction over the FBI, and
they said that they were too special, that they were somehow
different, that they had to look at their own misconduct, and
that the IG should not come in and look at FBI actions. I think
that was wrong, and I think that has been proved wrong by the
experience since we did get jurisdiction over the FBI in 2001.
I think the same principles should apply to lawyers in the
Department of Justice. There should not be this carve-out of a
special class that is not subject to the jurisdiction of the
Office of the Inspector General.
Chairman Lieberman. I agree with you. And just finally, am
I correct that, notwithstanding that, in response to your
request you are now involved in the investigation of the
supervisors in DOJ who were involved in the firing of the U.S.
Attorneys?
Mr. Fine. Yes. When we learned about the assignment to OPR,
we objected and said that we thought it was our jurisdiction.
We discussed it. There was a dispute. Eventually, because of
the unique circumstances of this, we agreed to do a joint
investigation with OPR. So we are jointly investigating this
matter. It is moving forward. But in my view, it is an example
and an instance, an illustration of why the OIG, the IG, should
have unlimited jurisdiction throughout the Justice Department,
just like every other agency.
Chairman Lieberman. Thank you. Senator Collins.
Senator Collins. Thank you.
Mr. Johnson, recently there was a dispute between the head
of GSA and the IG concerning the budget for the IG. That became
public only because the IG went public to complain about the
budget cuts. Some of the witnesses here today have recommended
that the IGs' submission of the budget requests go not only to
OMB but to Congress. That way we would always know if the
budget has been cut by the agency head before it is presented
to us.
What is your judgment, what is your opinion on having the
IG do a direct budget submission not only to OMB but to
Congress?
Mr. Johnson. I believe that an IG office is part of an
agency, and you have to look at the total budget for each
agency, and that includes the IG operation. Just like at Social
Security, there are disability claims, investments that can be
made or not. In the disability claims, people at Social
Security do not submit a separate budget to Congress or
separate budget to OMB, separate from the Social Security
Administration, or the IRS does not submit a separate budget to
Congress for auditing of people's tax returns and so forth. It
is done in the context of the overall Treasury budget.
So I believe that it should not be a separate submission. I
think it ought to be part of the agency's submission. I think
there should be lots of transparency about what budget is being
recommended this year versus prior years so that the Congress
has that information before it. But I do not believe it should
be an independent submission.
Senator Collins. Ms. Brian, I want to follow up with you on
the issue of the effectiveness of IG offices. There are some IG
offices in smaller agencies that are extremely small. They have
maybe one person, literally, or two people.
Several years ago, I proposed legislation to consolidate
some of those smaller IG offices. For example, I remember there
was one for the National Endowment for the Arts and a separate
one for the National Endowment for the Humanities. So I
proposed combining those into a larger office that would have
more critical mass.
My proposal went nowhere on that. It turned out every
agency had a stake in having its own IG. So we still have this
problem where we have very small offices, literally in some
cases one- or two-people offices, that really cannot accomplish
much because they do not have a critical mass.
What is your judgment on whether we should take a look at
some of the smaller IG offices and try to consolidate them?
Ms. Brian. Senator, I think that is an excellent question.
I do not have an answer to it yet. It is the kind of thing that
we would enjoy looking at and coming back to you with a
recommendation. But I think the points you are making are very
well taken.
Senator Collins. I really hope you will come back to us on
that. It would help us if an outside group found that it was a
good idea to overcome the bureaucratic turf battles that always
occur whenever you try to do consolidation.
Ms. Hill, I want to follow up with you on the issue that
has been raised about whether the IG offices need separate
General Counsels so that they are not borrowing from the agency
because DOD does not have a separate counsel for the IG's
office.
Ms. Hill. Right.
Senator Collins. You served very effectively as the DOD IG.
Did you feel hampered by the lack of your own General Counsel,
or did it work fine for you?
Ms. Hill. Senator, in our particular circumstance, it
worked. And I will tell you, when I became IG, my knee-jerk
reaction was: This is not going to work; I need to have my own
counsel.
However, I had a 1,500-person shop at the time, and I
wanted to take a few months to make sure I knew what was
working in the organization and what was not before I made
major changes. So I gave everything a few months to watch. The
General Counsel issue was one of them. There was strong
sentiment in the IG office senior leadership, the professional
long-term people, that it was a good thing to have a lawyer
that was a Deputy General Counsel of the Department of Defense.
That lawyer is housed in the IG's building right down the hall
from the IG, serves daily under the IG, and has a team of
lawyers serving under him. So there are about seven or eight
lawyers there.
I watched it for several months, and it worked in our
circumstances. They argued that it was good to have someone who
could get the input from the other much larger General
Counsel's office at the Pentagon on procurement issues,
contracting issues, and other very technical issues. You have
the benefit of getting their expertise because you are part of
that office.
It worked for us because, one, we had a very good lawyer
there who had been with the IG for a long time and really was
loyal to the IG. I never sensed there was any division of
loyalty.
Second, the General Counsel at the time for the Department
of Defense was a very good General Counsel who understood and
appreciated IG independence. I had a very good relationship
with her. She never tried to tread on our territory.
And, third--and this probably made me feel the most
comfortable--I was a lawyer, and I was a fairly experienced
lawyer. I had been a prosecutor for 6 years. I had been in
congressional oversight for 15 years. I knew the IG issues. So
I was not reluctant to question my lawyers and probe and push
them back a little and do the kind of things that you would
want to do to make sure you are getting solid, independent
advice. Had I not been a lawyer, I might have felt differently.
So in our unique situation, it worked.
On the other hand, as a rule institutionally, I will tell
you that I would probably say my recommendation would be that
IGs should have their own counsel. I think our situation was
unique at the time. I do not know if that situation still
exists today because it was dependent on the IG's background,
on the Department's attitude, on the person that was in the
job--all of which can change very easily.
Senator Collins. Thank you.
Chairman Lieberman. Thanks, Senator Collins. Senator Akaka.
Senator Akaka. Thank you very much, Mr. Chairman.
Mr. Johnson, good to see you again. Over the past year and
a half, Mr. Johnson, the OPM IG, at your request as head of the
PCIE, has been investigating Special Counsel Scott Bloch, who
is a member of the PCIE but not an IG. To my knowledge, this is
the first investigation of this kind.
Do you believe any change should be made to the PCIE or
Integrity Committee structure to address this type of
investigation?
Mr. Johnson. Well, there is a particular issue with
investigation of a Special Counsel because there is no
mechanism for inspecting complaints against a Special Counsel,
and they could not inspect themselves. And so we thought the
best thing to do was to help the Office of Special Counsel
create an Economy Act agreement with an IG's office to come in
and do the inspection of the Office of Special Counsel.
So one issue is how do we deal with future complaints
against the Office of Special Counsel, or the Office of
Government Ethics is another one that we have to deal with.
That is one issue.
Another issue is does the Integrity Committee apparatus
need to be modified or enhanced or something, and I think the
second issue there is a bigger issue, potential issue, than the
first one. We probably need to do something to make sure there
is a formal mechanism for dealing with complaints against the
Special Counsel and the Office of Government Ethics in the
future to clarify that.
On the question of does the Integrity Committee need to be
revised, I think I would defer and engage in conversation with
Mr. Devaney and the other members of the Integrity Committee to
see what they think the strengths and weaknesses of it are. I
know a lot of the people that have been the target of
investigation by the Integrity Committee would like to see it
change, more open notification to them of what the charges are
and more opportunity to respond to the charges against them and
so forth.
So I think the Integrity Committee process does need to be
looked at. I don't have any specific recommendation for
changing it now. But I think a thorough review of that is in
order, and maybe we decide to leave it the way it is, but it
ought to be looked at.
Senator Akaka. What is the status of that OPM
investigation?
Mr. Johnson. Well, it has gone on for a very long time. In
my mind, too long a time. But we do not say you should only
take so many months to conduct this investigation. It is not
clear to me all the reasons why it has taken this long, but it
is what it is. I am not satisfied, nor are you, with the fact
that we do not have findings yet on that, but it would be
totally improper for me or anybody to step in and say you only
have this much time to conduct this investigation.
Senator Akaka. Thank you.
My next question is to any of the current and former IGs--
Mr. Fine, Mr. Devaney, and Ms. Hill. I am concerned that the
PCIE and ECIE, particularly the Integrity Committee, may not be
strong enough. Earlier this year, the Integrity Committee
concluded that the NASA IG, Robert Cobb, had abused his
authority and had not maintained an appearance of independence
from NASA officials. The Committee took the unusual step of
recommending disciplinary action, which they normally do not,
up to and including removal. Mr. Cobb rejected the Committee's
findings, and he remains in office.
What should be done if the Integrity Committee's
recommendations are ignored? Can the Committee's role be
strengthened? Mr. Fine.
Mr. Fine. I think that is an important question dealing
with accountability, and I do think the PCIE and the Integrity
Committee are a fundamentally important concept to ensure
accountability over IGs.
I do think it can be strengthened. I think one of the
things that can be done to strengthen the PCIE is to make it
statutory, make it a statutory council and provide designated
funding for it. The people who work on the PCIE--either the
Vice Chair or the people on the Integrity Committee--are IGs
who have enormous other responsibilities, and this is a
collateral duty piled on top of all their other
responsibilities. So to the extent it can be made more
concrete, codified, and provided funding, I think it would be a
positive thing.
Mr. Devaney is on the Integrity Committee, and I am sure he
has ideas as well.
Senator Akaka. Mr. Devaney.
Mr. Devaney. Senator, without commenting specifically on
that case that you mentioned, the Committee looks at these
allegations. They are first screened by the Public Integrity
Unit of the Department of Justice, which eliminates any
possibility of criminal wrongdoing, and then we look for
administrative review, if necessary. And as I mentioned
earlier, in the some 300-odd cases that have come down in the
last decade or so, only 17 have been forwarded for a full
administrative investigation.
My observation, having been on the Committee, is that each
of those investigations that I was on the Committee while those
investigations took place were all done very professionally and
in keeping with Federal investigative standards. And then the
Committee forwards, sometimes with and sometimes without
recommendation, to the person who sits in Mr. Johnson's
position for whatever action they deem appropriate,
particularly with a presidentially appointed IG.
I would never advocate that the Committee that does the
investigation also act as the judge and set the sentence. It is
not appropriate for both duties and roles to be in the same
place.
So I think in the case you mentioned and in other cases
that I have observed while I have been there, it has worked
right. There is always a cry that it is not as transparent as
people would like it to be. There are obvious due process
considerations that we have of the people that are being
investigated. We have changed some of the internal guidelines
of the Committee recently to allow the people being
investigated to understand the extent of the allegations being
made against them, to provide an opportunity for them to
provide the other side of the story. But I would never advocate
that the Committee take on the role of final adjudicator of
what happens to an IG if, in fact, the facts substantiate the
allegations.
Senator Akaka. Ms. Hill.
Ms. Hill. Well, Senator, obviously I am not a member of the
PCIE now, so I do not have facts on current cases and I really
cannot speak to that. But I clearly would, based on my own
experience, echo what Mr. Fine said in terms of strengthening
the Committee. My recollection from my years with PCIE was
that, as Mr. Fine said, everything connected with PCIE,
including the Integrity Committee, is an additional burden on
various IG offices. And in my experience, when it came time to
get manpower to conduct investigations, for instance, for the
Integrity Committee back in the 1990s, there was always an
issue of trying to find an IG who was willing to give enough
resources to do that because usually the answer was: I have
other things going on; I cannot do this, etc. The PCIE was kind
of out there as sort of this amorphous thing that was a
council, but it really was not a statutorily authorized
function or a statutory requirement.
So I think codifying it, making it statutory, giving it
resources, and giving it funding would certainly give it a lot
more authority and make it a more serious effort.
Senator Akaka. Thank you very much for your----
Mr. Johnson. Senator Akaka, could I clarify one thing? The
recommendations of the Integrity Committee were not ignored by
Administrator Griffin. There was a range of opinion on the
Committee. Some felt up to a dismissal. But there was not a
consensus recommendation. It was recommended that some action
be taken and some action was taken.
Senator Akaka. Thank you.
Chairman Lieberman. Thanks, Senator Akaka. A vote has just
gone off, but that should give us time to have questioning by
our two remaining Senators.
Senator McCaskill.
Senator McCaskill. I do not want to dwell on Inspector
General Cobb, but I had the opportunity to sit on that hearing
in Commerce, and I was shocked at the level of denial that this
Inspector General had about the findings against him,
understanding that the Committee on Integrity is made up of
cautious, conservative people. I know this. These are cautious,
conservative people that are fact-driven. It was a unanimous
decision that disciplinary action be taken. I think a lot of
Americans would quarrel with the idea that a management course
is disciplinary action.
And to add insult to injury, this Inspector General came in
front of a Committee of the Senate and basically called out the
Committee of Integrity as being bogus, basically said their
findings were not valid, that they were not fair.
I think it is breathtaking that an Inspector General would
be so dismissive of a body of his peers that had made that kind
of unanimous determination for disciplinary action. And I will
tell you, I am disappointed that you would see that as an
appropriate outcome based on that investigation because it
seems to me if the Committee on Integrity says unanimously that
disciplinary--and, by the way, after that management course
was--after a ``de novo investigation'' by the counsel at NASA,
and after the Committee learned of that, they wrote another
letter to that agency saying, Hello, we said in this letter
that this was serious and this was a real problem.
So from my chair, listening to Inspector General Cobb, he
believes that he has been wronged, that he has done nothing
wrong, that somehow this Committee has dealt him dirty. And so
I am frustrated that we have a system--and I realize this is an
exception to the rule. I realize in most instances the
Committee does their investigation and issues findings, and I
have got many examples in my preparation for today's hearing
where the work of the Committee on Integrity has had that
validity and had the kind of oversight it should have. But in
this instance, it failed, and we have to figure out how we fix
that.
I would ask you, either Ms. Hill or Mr. Devaney, as to what
we can do in Congress to make sure that we do not have an
Inspector General that gives the back of his hand to the
Committee on Integrity.
Mr. Devaney. Well, I certainly did not enjoy being on the
receiving end of those comments.
Senator McCaskill. I am sure you did not. It was very
insulting to you.
Mr. Devaney. I was not there. I did read them later. Of
course, I disagree with them.
I have thought about this a lot, and I will go back to what
I said earlier. The Committee cannot itself be the body that
exercises the final decision on what happens to an IG. We
proffered a long, I might add, professional investigation with
some recommendations to the appropriate official.
Now, we do that every day at our departments. We do
professional, fact-based investigations. We ultimately give
them to a Secretary or an agency head for whatever action they
deem appropriate. And I would like to think that when that
happens, people who have done wrong are held accountable. That
does not always happen. I have been disappointed at the
Department of the Interior on many occasions on that issue, but
that is part of the process. And from my perspective, I just
keep coming back and doing the right thing and hoping that
sooner or later people get the idea that accountability is
important.
Senator McCaskill. If those of you who are currently in--
and I am certainly aware of your work, Mr. Fine, and it is
extraordinary, and your background. I read a long article about
you. Along with reading all the reports, I also read about you
guys. I would appreciate all three of you, if you could give
input as to what we could do to make sure a situation like this
does not become more commonplace. I was shocked at the
testimony of the Inspector General after the kind of peer
review that he had undergone to be as dismissive as he was.
Briefly, let me ask one question, Ms. Hill. I have learned
that the Inspectors General in the branches of the military are
not really Inspectors General. The Inspectors General within
the branches do not have any independence or requirement to
report to the Congress or to the public. They are really apples
and oranges.
Now, the Department of Defense Inspector General is an
Inspector General and has that independence and has that
obligation. But we are calling them Inspectors General within
the branches, and they have no obligation to anyone other than
their commander.
I would like your idea as to whether we should rename those
Inspectors General because they are not doing the work that the
other Inspectors General in the Federal Government are doing.
Ms. Hill. Well, you are absolutely right, Senator, that
they have a very different role than the statutory IGs. But I
would venture to guess--as DOD IG, I worked very closely with
the military IGs. I oversaw what they did. I met with them
regularly. And I will tell you, if you told them that they are
misusing the name, they would probably say, ``Well, it was our
name first.''
Senator McCaskill. That is exactly what they told me.
[Laughter.]
Ms. Hill. Because they are very proud of the military
Inspector General concept, which goes back, as the Chairman
said, in this country to Baron von Steuben, and even before
that into the 17th Century European military. So it has been
around for a long time. But it is a very different concept than
what Congress did in 1978. The military concept is much more
focused on inspections, on assisting military members. They do
investigations, but the big difference, as I mentioned in my
statement, is their investigations go up that chain of command,
and in the military, the chain of command is not about
independence. It is within the chain of command in the very
traditional military sense.
That is why the role of any DOD IG, because you do have the
statutory independence, is to oversee all the military
Inspectors General in the Department and in certain cases to
actually take investigations from them. We used to take the
very senior military officer investigations because they did
not have the independence to do that.
I would also just mention--and you may be interested in
this--the military also has Auditor Generals.
Senator McCaskill. Oh, I am aware.
Ms. Hill. Each branch of the service has an Auditor
General, and it is a very similar thing. They also do audits
within that military branch, but they do it up the chain of
command and do not have the statutory independence the
departmental IG does.
So part of the role of the Defense IG, the statutory IG, is
to oversee and routinely meet with all the service IGs and the
service Auditor Generals and make sure they are doing good
work, oversee what they do, and if they are not doing solid
work, to take that work up a level and do it at the statutory
level.
Senator McCaskill. The problem is we have thousands of
auditors within the Department of Defense.
Ms. Hill. Correct.
Senator McCaskill. But a huge chunk of those auditors,
their work the public never sees, and I think that is a problem
because ultimately, as I said in my opening statement, the
strength of an audit product lies with the public being aware
of it and holding government accountable as a result of those
audits.
So I would welcome your input on how we can work within DOD
to change some of those things.
Ms. Hill. Right, because you do have--I mean, DCAA, when I
was there, had 5,000 auditors, and I am sure they probably have
more now.
Senator McCaskill. I counted. I think there are 20,000
auditors within the Department of Defense. I think most
Americans would be shocked to know that we have 20,000 auditors
within the Department of Defense.
Ms. Hill. Right.
Senator McCaskill. Especially in light of the fact they
have been on the high-risk list now for an awful long time.
Ms. Hill. Forever, right.
Chairman Lieberman. Thanks, Senator McCaskill. Senator
Coburn.
OPENING STATEMENT OF SENATOR COBURN
Senator Coburn. Well, first of all, let me thank each of
you for your contribution and your service. In the last 2 years
prior to this Congress, we used what you did a lot in the
Federal Financial Management Subcommittee, and I value your
work a great deal.
My criticism is not really of the IG program. It is of
Congress because we do not use what you give us, and that is
the biggest problem. That has to be the most frustrating thing
for you because you develop it and then we do not highlight it
to the American people and then make changes.
If there ought to be anything coming out of this Committee,
it is the great work that the IGs most normally do and the fact
that it is not acted on by Congress to make a difference for
the American taxpayer.
I am impressed by the bill that Senator McCaskill has. I
think it needs to be fine-tuned a little bit.
I also would like to spend some time in trying to figure
out, if any of you all can tell us--the Defense Department is
broken in terms of its procurement, in terms of its auditing,
in terms of its oversight. We need to have a skull session on
how we get better value. I am convinced, of the $640 billion
that we are going to spend this year, we are going to waste $60
billion of it. And we do not have $60 billion to waste.
So I would offer an open invitation to any of you that
would want to come into our office to talk about how do we
fix--even though we have Inspectors General and we have a
statutory Inspector General in the Defense Department, how do
we fix that system to where it works and there is
accountability? Because I am convinced that there is not any
transparency, and without transparency, you are not going to
have any accountability.
Other than that, I do not have any additional questions,
Mr. Chairman. I thank you for holding this hearing. This is one
of the most critical aspects for restoring confidence to the
American people in this government, what you all do every day.
And I want you to know I, as a Senator, and I think most of us
really appreciate what you do. Thank you
Chairman Lieberman. Thanks, Senator Coburn. I agree with
you. We will bring forth legislation in this session on the
IGs.
I think Senator Coburn makes a good point. Part of the
problem is that Congress does not respond comprehensively
enough to what the IGs tell us.
This has been a very helpful hearing. I thank each of you
for your testimony and for the considerable experience that you
brought to the table.
We are going to leave the record of the hearing open for 15
days, either for additional testimony that you or others might
want to submit or we may want to ask you another question.
In the meantime, I thank you very much. The hearing is
adjourned.
[Whereupon, at 11:50 a.m., the Committee was adjourned.]
A P P E N D I X
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