[Senate Hearing 113-367]
[From the U.S. Government Publishing Office]
S. Hrg. 113-367
STRENGTHENING GOVERNMENT OVERSIGHT:
EXAMINING THE ROLES AND EFFECTIVENESS
OF OVERSIGHT POSITIONS WITHIN THE FEDERAL WORKFORCE
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE EFFICIENCY AND
EFFECTIVENESS OF FEDERAL PROGRAMS AND THE FEDERAL WORKFORCE
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 19, 2013
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
THOMAS R. CARPER, Delaware Chairman
CARL LEVIN, Michigan TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
MARY L. LANDRIEU, Louisiana RON JOHNSON, Wisconsin
CLAIRE McCASKILL, Missouri ROB PORTMAN, Ohio
JON TESTER, Montana RAND PAUL, Kentucky
MARK BEGICH, Alaska MICHAEL B. ENZI, Wyoming
TAMMY BALDWIN, Wisconsin KELLY AYOTTE, New Hampshire
HEIDI HEIKAMP, North Dakota
Richard J. Kessler, Staff Director
John P. Kilvington, Deputy Staff Director
Keith B. Ashdown, Minority Staff Director
Laura W. Kilbride, Chief Clerk
Lauren Corcoran, Hearing Clerk
SUBCOMMITTEE ON THE EFFICIENCY AND EFFECTIVENESS OF FEDERAL PROGRAMS
AND THE FEDERAL WORKFORCE
JON TESTER, Montana, Chairman
MARK L. PRYOR, Arkansas ROB PORTMAN, Ohio
CLAIRE McCASKILL, Missouri RON JOHNSON, Wisconsin
MARK BEGICH, Alaska RAND PAUL, Kentucky
TAMMY BALDWIN, Wisconsin MICHAEL B. ENZI, Wyoming
HEIDI HEITKAMP, North Dakota
Tony McClain, Majority Staff Director
Brent Bombach, Minority Staff Director
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statement:
Page
Senator Tester............................................... 1
Senator Portman.............................................. 3
WITNESSES
Tuesday, November 19, 2013
Hon. Peggy E. Gustafson, Inspector General, Small Business
Administration and Chair Legislation Committee, Council of the
Inspectors General on Integrity and Efficiency................. 5
Hon. Michael E. Horowitz, Inspector General, U.S. Department of
Justice........................................................ 7
Hon. Carolyn N. Lerner, Special Counsel, U.S. Office of Special
Counsel........................................................ 9
Karen Neuman, Chief Privacy and Freedom of Information Act
Officer, U.S. Department of Homeland Security.................. 11
Wendy Ginsberg, Ph.D., Library of Congress, Congressional
Research Service............................................... 12
Alphabetical List of Witnesses
Ginsberg, Wendy, Ph.D.:
Testimony.................................................... 12
Prepared statement........................................... 59
Gustafson, Hon. Peggy E.:
Testimony.................................................... 5
Prepared statement........................................... 35
Horowitz, Hon. Michael E.:
Testimony.................................................... 7
Prepared statement........................................... 38
Lerner, Hon. Carolyn N.:
Testimony.................................................... 9
Prepared statement........................................... 45
Neuman, Karen:
Testimony.................................................... 11
Prepared statement........................................... 51
APPENDIX
Responses to post-hearing questions for the Record:
Ms. Gustafson................................................ 71
Mr. Horowitz................................................. 77
Ms. Lerner................................................... 86
Ms. Neuman................................................... 88
Ms. Ginsberg................................................. 90
STRENGTHENING GOVERNMENT OVERSIGHT: EXAMINING THE ROLES AND
EFFECTIVENESS OF OVERSIGHT POSITIONS WITHIN THE FEDERAL WORKFORCE
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TUESDAY, NOVEMBER 19, 2013
U.S. Senate,
Subcommittee on the Efficiency and Effectiveness of
Federal Programs and the Federal Workforce,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room 342, Dirksen Senate Office Building, Hon. Jon Tester,
Chairman of the Subcommittee, presiding.
Present: Senators Tester, Portman and Johnson.
OPENING STATEMENT OF SENATOR TESTER
Senator Tester. I will call to order this hearing on the
Subcommittee on Efficiency and Effectiveness of Federal
Programs and the Federal Workforce.
This afternoon's hearing is titled Strengthening Government
Oversight: Examining the Roles and Effectiveness of Oversight
Positions within the Federal Workforce.
I want to thank Senator Portman, who will be here shortly,
for his ongoing engagement and leadership on this Subcommittee,
and we look forward to continuing our partnership as we move
forward the hearings that are in front of us.
I want to thank our witnesses for joining us today and for
their ongoing work that brings greater oversight,
accountability and transparency to the Federal Government.
I can tell you that folks back in Montana are a bit
skeptical about the way things work in Washington. I hear about
it every weekend when I go home.
So they see news coverage of lavish retreats and of
conferences hosted by government agencies on the taxpayer dime.
They read about millions wasted on construction contracts in
Afghanistan that are not needed or cannot be sustained. They
hear about the latest infringement of their privacy by
government programs carried out in the name of national
security.
And so I do not blame them for being a bit wary of what is
going on here in Washington, DC. In fact, I often feel the same
way.
Today, over two million men and women make up our Federal
workforce. They administer programs and initiatives that touch
upon every aspect of our lives.
And we know that good oversight comes with the executive
and legislative branches working together. We need partnerships
within the executive branch. Without independent voices of
oversight within the Federal agencies, including the folks that
are here today, we have no hope for accountability or
transparency, and we certainly have no hope of maintaining the
public trust in our government.
As I told the Council of Inspectors General earlier this
year, they, along with our privacy officers, comptrollers and
oversight officials, have some of the toughest jobs in
government.
I know that when you call an agency head or division chief,
they do not often sprint to the phone to pick it up, and you
frequently have to fight for access that you need to do your
jobs. And I get that.
It is critical that you let us know when impediments
prevent you from performing effectively your roles of
oversight, whether it is a lack of authority or resources.
Earlier this year, in the wake of Edward Snowden leaks, the
Subcommittee held a hearing on security clearance reforms. At
that meeting, we learned that the Inspector General (IG) of the
Office of Personnel Management (OPM) was precluded from using
funds from the OPM's revolving fund for audits and oversight.
This is a $2 billion fund that finances background
investigations as well as other OPM programs such as human
resource solutions and USAJobs.
Because the OPM IG is unable to access these funds,
rigorous oversight is not being performed and a financial audit
on the fund in its entirety has never happened. So I, along
with Senators Portman and McCaskill, Senators Johnson and
Coburn, subsequently introduced a bill to provide the OPM IG's
office with the access that it needed to those funds.
The SCORE Act has now passed the Senate, and we are closer
to seeing the level of oversight of this fund that should have
been performed a long time ago. But it is good news where we
are at today for taxpayers, and I think it is good news for our
national security. We need our House colleagues to move forward
on the SCORE Act.
The point is that we can be productive partners with the
oversight workforce to effect change. All that is required is
an open and frank line of communication. We are here to help,
but we often need folks like you to serve as our eyes and our
ears within the agencies. Whether it is reining in wasteful
spending, holding individuals and agencies accountable for
wrongdoing, shining a light on government operations or
protecting the privacy rights of law-abiding Americans, we want
to empower you and your efforts.
Today, with this hearing, we hope to examine the various
roles currently played by our Federal oversight workforce, to
explore some of the challenges that you confront and to
identify ways to overcome those challenges. And I look forward
to the discussion today.
With that, I want to welcome Senator Portman, Ranking
Member of this Committee, and turn it over to him for his
opening statement.
OPENING STATEMENT OF SENATOR PORTMAN
Senator Portman. Thank you, Mr. Chairman. I appreciate it.
Thank you all for being here today.
As you know, this Committee, and specifically this
Subcommittee, relies on you, and we love to drag you up here
and have you join other expert witnesses to tell us what is
really going on in your agencies.
We are concerned, frankly, with the vacancies, and that is
one reason we wanted to have this hearing today. We think
Inspectors General and their oversight offices are key as the
watchdogs of the Federal Government.
We are looking at fraud and abuse, efficiency and
effectiveness even outside of fraud and abuse. We like to get
your input on pending legislation and regulations. And we have
all got a big task. So we need the independent oversight
professionals like yourselves.
On the vacancy issue, since early 2009, we have had a real
issue here. At its height of this problem of lack of IGs, in
the 12 cabinet departments and major Federal agencies, we were
without a permanent IG. That was the worst that it has been as
far as we can tell in the history of IGs.
In fact, at the State Department, as some of you know, we
had a vacancy there that went over 1,400 days, not having a
permanent IG at the State Department really for the whole first
term.
Such vacancies leave these offices without proper
leadership, and as a result, we have seen allegations of
political influence and suppression of the IG office at the
Department of State, and allegations of abuse of power and
misconduct at the Homeland Security IG Office.
So we also want to be sure that we can have trust in our
oversight professionals because when you cannot there is a
serious breakdown in the management of any organization, let
alone such large and important Federal agencies.
So, with the current financial status of the Federal
Government and our now $17 trillion debt, we certainly owe it
to our constituents to ensure their tax dollars are being spent
in the right way--the most efficient and effective way
possible. And it is the oversight workforce, you all, who are
on the front lines to ensure that happens. So we want to
continue to find ways to support and empower IGs and the
oversight community.
So thank you, Mr. Chairman, for holding this hearing today.
I look forward to the testimony as we move forward together to
achieve that goal.
Senator Tester. Thank you, Senator Portman. I appreciate
your words.
Senator Johnson, do you have an opening statement?
Senator Johnson. No.
Senator Tester. OK. Well, what I will do is, first of all,
I want to welcome you all once again to the hearing today. We
are very fortunate to have such a great panel of witnesses. I
will introduce you all right now, and then we will start with
Peg and just go right down the line.
Peggy Gustafson is the Inspector General of the United
States Small Business Administration (SBA). As Inspector
General of SBA, she heads up the audit and investigative
programs that seek to identify fraud, waste, abuse and
mismanagement in programs at SBA.
She also is the head of the Legislation Committee for the
Council of Inspectors General on Integrity and Efficiency
(CIGIE). CIGIE members include 72 IGs from the executive and
legislative branches of government as well as 6 senior
Administration officials with related portfolios and
responsibilities.
Welcome, Peg.
We have Michael Horowitz, who is the Inspector General for
the United States Department of Justice (DOJ). He oversees an
oversight workforce of approximately 450 special agents,
auditors, inspectors, attorneys and support staff. Their
mission is to detect and deter waste, fraud and abuse and
misconduct in the Department of Justice programs and personnel,
and to promote economy and efficiency in the Department's
operations.
Welcome, Michael.
Carolyn Lerner is the head of the Office of Special Counsel
(OSC), an independent investigative and prosecutorial Federal
agency. Among other missions, the OSC protects the merit system
for 2.1 million civilian Federal employees, provides a channel
through which whistleblowers can report waste, fraud and abuse,
and enforces the Uniform Services Employment and Reemployment
Rights Act (USERRA), which upholds the employment rights of our
Service members.
Carolyn, thank you for being here.
Karen Neuman was recently named as Chief Privacy and
Freedom of Information Act Officer for the Department of
Homeland Security (DHS). She leads the first statutorily
mandated privacy office in any Federal agency. That office is
tasked with protecting Americans by embedding and enforcing
privacy protections and transparency in all DHS activities.
Once again, welcome, Karen.
Wendy Ginsberg is an analyst in American National
Government of the Congressional Research Service (CRS). She
received her Ph.D. from the University of Pennsylvania in 2011.
We are very happy to have her historical perspective on all
things oversight today.
I want to welcome you, Wendy.
And thank you all for being with us today.
It is custom to swear in all witnesses who appear before
this Subcommittee. So, if you do not mind, please stand and
repeat after me.
Do you swear that the testimony you are about to give
before this Subcommittee will be the truth, the whole truth and
nothing but the truth; so help you, God?
Ms. Gustafson. I do.
Mr. Horowitz. I do.
Ms. Lerner. I do.
Ms. Neuman. I do.
Ms. Ginsberg. I do.
Senator Tester. Let the record reflect that the witnesses
answered in the affirmative.
We will start with you, Peg. You can start with your
presentation.
TESTIMONY OF THE HON. PEGGY E. GUSTAFSON,\1\ INSPECTOR GENERAL,
SMALL BUSINESS ADMINISTRATION, AND CHAIR, LEGISLATION
COMMITTEE, COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND
EFFICIENCY (CIGIE)
Ms. Gustafson. Good afternoon, Chairman Tester, Ranking
Member Portman and Members of the Committee. On behalf of the
Chair of the Council of the Inspectors General on Integrity and
Efficiency, I am honored to represent the Federal Inspector
General community this afternoon to discuss our work and recent
accomplishments as well as some of the challenges we face in
carrying out our oversight duties.
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\1\ The prepared statement of Ms. Gustafson appears in the Appendix
on page 35.
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I want to begin by thanking the Subcommittee on behalf of
the IG community for your continuing support of our mission and
your interest in our work. The support of the Subcommittee has
been longstanding and bipartisan, and we very much appreciate
that.
I am pleased to report that the Inspector General Reform
Act of 2008 is working as intended. CIGIE serves a leadership
role and is the core of the IG community. Together, the work of
the IG community has resulted in significant improvements to
the economy and efficiency of programs governmentwide, with
potential savings totaling approximately $46.3 billion in
fiscal year (FY) 2012. With the IG community's aggregate budget
of approximately $2.7 billion in that year, these potential
savings represent about a $17 return on every dollar invested
in the IG community.
Notwithstanding these results, IGs do face certain
challenges as they work to improve the efficiency and
effectiveness of government programs. Our principal challenges
pertain to independence concerns and timely access to
information that we need to perform our duties. In recent
years, we have been advocating for some additional tools to
alleviate these challenges.
For example, CIGIE feels strongly that Offices of Inspector
General (OIG) should be exempted from the Computer Matching and
Privacy Protection Act relative to using electronic means to
identify those who improperly receive Federal assistance and
payments and subsequently, seek removal of those persons from
the program after verification of this information and due
process is applied. This would improve program efficiency
throughout the government.
Similarly, CIGIE has recommended that the Paperwork
Reduction Act (PRA) be amended to exempt Federal IG Offices.
The PRA requires that information collection, such as surveys
that we may want to do of a certain community, be subject to
approval from a senior official of the agency, not the IG
Office but a Federal agency, and also from the Office of
Management and Budget (OMB). While changes have been made to
the PRA to exempt independent regulatory agencies and the
Government Accountability Office (GAO) remains exempt from the
PRA, all laws have been silent as to the application of the PRA
to IGs. We believe that if these exemptions could be provided
to IG Offices, it would enhance our independence and remove
lengthy processes that are hampering our ability to do our job.
In the last few years, the IG community has been hit
especially hard by the uncertainty in the budget process and
cuts to operating budgets. Offices of Inspector General, by
nature, are comprised principally of personnel, and their
budgets are dedicated to funding the same. A recent survey of
the IG community by the Association of Government Accountants
has found that more than two-thirds of IGs interviewed
identified budget resources as a top challenge. Many of our
offices have undertaken hiring restrictions, hiring freezes and
limited new investments in order to operate under the current
budget levels. To highlight this finding, right now in my
office, we are suffering an approximately 17 percent vacancy
rate in positions that we simply have not been able to fill in
order to maintain the current spending levels.
I am grateful that IGs across the government have a voice
through CIGIE and have access to training and other resources
that have been provided to them in the IG Reform Act. In
conjunction with that, our training academy has trained last
year 1,677 IG employees, representing a 17 percent increase of
students from our previous year.
In addition, and in accordance with CIGIE's primary
mission, over the past several years, the IG community has
identified and addressed a number of issues that transcend
individual agencies through cross-cutting projects, as talked
about and mentioned and suggested in the IG Reform Act.
For example, CIGIE has issued reports on such topics as
cybersecurity, the use of suspension and debarment throughout
the Federal Government, the use of new media, the effectiveness
of the CFO Act, disaster preparedness programs in the various
agencies, international trade and competitiveness, as well as
things like our hotline operations and whistleblower
protections. All of these reports are public and available on
CIGIE's Web site.
In conclusion, I would just like again to emphasize that I
am very proud and pleased to represent the IG community. I am
very happy to be back in this hearing room, where I have spent
a lot of time in my previous iteration. And I am grateful for
the chance to take your questions.
Thank you.
Senator Tester. Well, thank you, Peg. And the fact that
your testimony ran 20 seconds short of 5 minutes shows that you
are not new to this party; you have been here before.
And we appreciate it because I forgot to tell you up front
that you have 5 minutes for your oral statement and your entire
statement will be put in the record.
With that, thank you.
Michael, you are up to bat.
TESTIMONY OF THE HON. MICHAEL E. HOROWITZ,\1\ INSPECTOR
GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Horowitz. Thank you, Chairman Tester, Senator Portman,
Members of the Subcommittee. Thank you for inviting me to
testify at today's hearing.
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\1\ The prepared statement of Mr. Horowitz appears in the Appendix
on page 38.
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The need for strong and effective independent oversight
over agency operations has never been more important. I am
pleased to highlight for you examples of our oversight work as
well as some obstacles we face in conducting that independent
oversight.
During my 18 months as Inspector General of the Department
of Justice, our office has issued reports ranging from our
review of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATFs), Operations Fast and Furious and Wide
Receiver, to our interim report on the Department's handling of
known or suspected terrorists in the Witness Security (WITSEC)
Program to our audit of ATF's income-generating undercover
operations. We issued 90 audit reports in this past year which
will help make the Department's operations more effective and
efficient.
Our Investigations Division had dozens of arrests and
convictions during that same period of time and investigated
allegations that resulted in more than 250 administrative
actions against Department employees.
Additionally, we conducted extensive oversight of the
Department's use of its national security-related authorities.
For example, we issued reports on the Federal Bureau of
Investigation's (FBI) activities under Section 702 of the
Foreign Intelligence Surveillance Act (FISA) Amendments Act and
the FBI's Foreign Terrorist Tracking Task Force's sharing of
information. And we expect to issue, in the near future,
reviews on the FBI's use of National Security Letters (NSL),
Section 215 Orders and Pen Register and Trap-and-Trace
Authorities under FISA, as well as on the management of
terrorist watch list nominations.
The oversight we conduct routinely produces measurable
benefits for taxpayers. Over the past 10 fiscal years, we
identified over $900 million in questioned costs, far more than
our budget during that same period. In addition, we identified
nearly $250 million in taxpayer funds that could have been put
to better use, and our criminal and administrative actions
resulted in more than $118 million in various recoveries.
And I am particularly proud of having instituted our
office's first ever whistleblower ombudsperson program. I have
seen firsthand the important role whistleblowers play in
advancing our mission, and whistleblowers should never suffer
reprisal for coming forward with what they reasonably believe
to be evidence of waste, fraud, abuse and misconduct.
Let me turn now to some of the challenges we faced in
conducting our oversight.
As we all know, these are difficult budgetary times across
the government, including for Inspectors General, and
sequestration is having a real impact on our office. The
substantial budget reduction for our office in fiscal year
2013, combined with the uncertain budget situation for fiscal
year 2014, has caused me to lower our staffing levels by
approximately 8 percent, or 40 full time equivalent (FTEs),
since I took office in April 2012. Further reductions in our
staffing will inevitably require us to reduce the number of
audits, investigations and reviews that we conduct, and it may
also impact how we proceed with those that we do conduct. It
may impact on the scope of those reviews and cause us to
overemphasize the importance of budgetary decisions in choosing
those audits, investigations and reviews.
However, let me say, despite those financial issues, I am
confident the dedicated professionals in our office and in all
OIGs will continue to provide the extraordinary service to the
American public that they have demonstrated over the years.
I want to address the issue mentioned earlier, which is
access to documents. For any OIG to have the ability to conduct
effective oversight, it must have complete and timely access to
all records in the agency's possession. This principle was
codified by Congress in Section 6(a) of the Inspector General
Act.
Most of our audits and reviews are conducted with full and
complete cooperation. However, there have been occasions when
our office has had access issues due to the Department's views
regarding access and being limited by other laws.
Such issues arose in Fast and Furious and our current
review of the Department's use of material witness warrants in
connection with grand jury and wiretap records. In both of
those instances, the Attorney General (AG) and Deputy Attorney
General came forward and provided us with written permission to
gain access to those records, and they both indicated they will
continue to do that in the future. But the issue is that having
an Inspector General have to go to its agency head to get
approval and to get that permission--that impairs our
independence, and it conflicts with the core principles, in our
view, of the Inspector General Act.
And I understand from speaking with several other
Inspectors General that they have had similar issues.
I believe the view of my colleagues in the Inspector
General community is straightforward and follows from what is
explicitly stated in the IG Act. An Inspector General should be
given prompt access to all relevant documents within the
possession of its agency.
Finally, I have outlined another limitation in my
testimony, which is unique to my OIG, which is we do not have
oversight authority over all misconduct in our agency. We have
authority over non-attorneys, but we do not have authority over
attorneys whose misconduct is alleged to have occurred in the
course of their litigating authority. That is an anomaly of
history, as I outline in my testimony. It is something we
believe should be corrected. Other IGs across the Federal IG
community have that authority, and we think we should have that
authority as well.
Thank you, Mr. Chairman.
Senator Tester. Thank you, Michael. Appreciate your
testimony.
Carolyn, you are up.
TESTIMONY OF THE HON. CAROLYN N. LERNER,\1\ SPECIAL COUNSEL,
U.S. OFFICE OF SPECIAL COUNSEL
Ms. Lerner. Chairman Tester, Ranking Member Portman,
Senator Johnson, Members of the Committee, thank you for the
opportunity to testify.
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\1\ The prepared statement of Ms. Lerner appears in the Appendix on
page 45.
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The Office of Special Counsel, protects the merit system
for over 2.1 million Federal civilian employees. We have a very
broad mission. We provide a safe and secure channel for
whistleblowers to report government wrongdoing. We protect
employees from prohibited personnel practices, especially
retaliation for whistleblowing. We enforce the Hatch Act. And
we protect the employment rights of veterans and Service
members employed by the Federal Government.
We do all this with 110 employees and the smallest budget
of any Federal law enforcement agency. While our staff is more
efficient and effective than at any point in OSC's 35-year
history, our capacity for improving government is limited by
serious resource challenges.
OSC's caseload is historically high. It has nearly doubled
in the last 5 years. But our staffing is at the same level as
it was 10 years ago. And, despite the increases in our
workload, OSC's already flat budget took a dramatic hit with
sequestration. The combination of high caseloads and a
shrinking budget threatens OSC's oversight potential.
The good news is that Congress and the Administration
recognized that the status quo is not sustainable. The
President's Fiscal Year 2014 budget request for OSC provides
for an increase of approximately $1.7 million, which both the
House and Senate Appropriations Committees have approved. I am
very hopeful that the final spending bills for 2014 will
include this total.
With that overview, I want to provide a little bit more
detail on OSC's recent successes.
The last 2 years have been a record-setting period. By
nearly every statistical measure, OSC achieved the most
positive results in its history, and these successes result in
greater confidence in OSC. However, such confidence can be a
double-edged sword as it directly correlates to our
skyrocketing caseload.
Our increased efficiency helps us manage this growing
caseload, and it also translates into real savings. In the last
5 years, OSC's cost to resolve a case dropped by 40 percent. So
we are doing a lot more efficiently.
And we are getting more favorable actions for
whistleblowers, such as back pay or reinstatement for victims
of retaliation, as well as disciplinary actions against
supervisors who retaliated or engaged in other prohibited
conduct. In 2012, our staff achieved a remarkable 89 percent
increase in favorable actions from the prior fiscal year, far
surpassing the number achieved in any previous year in history,
and the total number of favorable actions rose again last year.
But the numbers do not tell the whole story. Our efforts
often stop the immediate problem and spark systemic reforms
that prevent wasteful, inefficient or unsafe practices, and we
save the government money.
For example, 2 weeks ago, we issued a report detailing
serious overtime abuse by the Department of Homeland Security,
costing the government tens of millions of dollars annually.
Thanks to this Subcommittee and others, reform is already
underway, and I look forward to returning on December 10 to
testify a little bit more about our report in that case.
Also, in the past year, OSC worked with whistleblowers at
the VA Medical Center (VAMC) in Jackson, Mississippi.
Physicians and other employees raised concerns about unlawful
prescriptions and unsterile medical equipment among a range of
other issues affecting patient safety. OSC's efforts in that
case have resulted in greater oversight by the Administration
and Congress.
In the last 2 years, OSC also successfully carried out its
expanded role to protect the rights of veterans and Service
members under the Uniformed Services Employment and
Reemployment Rights Act. We have always prosecuted USERRA cases
before the Merit System's Protection Board (MSPB), but under a
3-year pilot project mandated by Congress, OSC is also
investigating half of all Federal sector USERRA claims while
the Department of Labor (DOL) continues to investigate the
other half.
We resolve many of our cases through alternative dispute
resolution--a low cost and highly effective approach. It is
particularly effective in USERRA cases, where we have a 100
percent success rate.
OSC is also implementing the Whistleblower Protection
Enhancement Act (WPEA) which became law in 2012. We are the
primary agency responsible for enforcing this law, and we are
seeing a significant increase in claims. In the first quarter
after the Act was passed, we had the highest number of filings
in our entire history.
The Congressional Budget Office (CBO) conservatively
estimated that we would need about $1 million more each year to
successfully implement the WPEA. However, under sequestration,
our resources have actually been cut by about a million dollars
since the enactment of the WPEA.
Investing in OSC is one of the most cost effective methods
of promoting good government and preventing violations of the
merit system laws. Whether we are enforcing the Hatch Act,
USERRA, the Whistleblower Protection Act or the laws protecting
employees from prohibited personnel practices, OSC provides a
high return to the Federal Government and the public.
I thank you for the opportunity to testify today, and I
look forward to hearing your questions.
Senator Tester. Thank you, Carolyn. Appreciate your
testimony.
Karen Neuman, you are up.
TESTIMONY OF KAREN NEUMAN,\1\ CHIEF PRIVACY AND FREEDOM OF
INFORMATION ACT OFFICER, U.S. DEPARTMENT OF HOMELAND SECURITY
Ms. Neuman. Thank you.
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\1\ The prepared statement of Ms. Neuman appears in the Appendix on
page 51.
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Good afternoon, Chairman Tester, Ranking Member Portman,
Senator Johnson and Members of the Subcommittee. I am very
pleased to be here today to discuss the DHS Privacy Office and
our oversight responsibilities.
I joined the Department of Homeland Security as the Chief
Privacy Officer just under 1 month ago. In this short time, I
have experienced firsthand the broad responsibilities borne by
this small, but critically important, office and the commitment
of the staff to ensuring that privacy is embedded throughout
the Department's programs. Our holistic approach to privacy
protection reflects our statutory policy, compliance and
oversight responsibilities.
I would like to address some of the specific questions you
raised in your invitation to testify today.
You asked about privacy and transparency. In addition to my
duties as Chief Privacy Officer, I am also the Department's
Chief FOIA Officer, and I understand the importance of
transparency in that respect.
Transparency is also central to our mission to protect
privacy. It is the first of the Fair Information Practice
Principles that guide the work of my office. Transparency lets
the public understand what information we collect from them,
how we use it across our vast mission set, how long we will
keep it and who we might share it with.
To promote transparency, the Privacy Office has published
hundreds of privacy impact assessments (PIAs), and system of
records notices (SORNs), on our public Web site. Our PIAs are
often the fullest description to the public of how DHS
activities and programs collect and use information and the
specific measures we take to provide a high level of privacy
protection.
The Privacy Office is able to provide this level of
protection because we operationalize privacy throughout the
Department. Our privacy and compliance teams work with DHS
programs and system owners at the earliest stage of
development, planning and implementation to identify potential
privacy risks.
For example, the compliance team may identify risks
associated with a particular program and help craft corrective
measures whereas the policy team identifies complex or novel
privacy issues that may have department-wide implications which
can be addressed through DHS-wide directives or policies.
I think from what I have seen in the short time I have been
here that our efforts to operationalize privacy have been very
effective.
You also asked about oversight. The Privacy Office
implements its oversight authority through a new oversight team
within the office that was established by my predecessor. The
team uses a suite of tools for reviewing the Department's use
of personally identifiable information (PII), each with the
goal of improving data stewardship. These tools include
collaborative privacy compliance reviews, privacy
investigations, privacy incident response and privacy complaint
handling and redress.
The oversight team has forged close working relationships
with other oversight authorities, including the DHS Office of
Inspector General, GAO, OMB and the Privacy and Civil Liberties
Oversight Board (PCLOB).
I believe this layered approach has been extremely
effective at avoiding duplication of effort while leveraging
the highly specialized expertise of the Privacy Office.
You also asked how well our incident response program is
functioning. We have a great working relationship with the
component privacy offices and security staff and the DHS
Security Operations Center, who are the privacy incident first
responders.
The Privacy Office provides guidance and oversees the
process to ensure that breaches or other incidents are properly
mitigated and remediated, and if we have questions about the
adequacy of the response, we may reach out to the components
involved to ascertain facts and work toward an effective
resolution.
DHS policy requires staff to report known or suspected
privacy incidents, and reporting has consistently improved over
the years as incident response training has intensified. I
believe this program is working well.
I would like to share a few examples with you where we have
integrated privacy policy compliance and oversight to provide
clear benchmarks for evaluating adherence to DHS privacy
policy. These areas include our review of some of the
Department's screening rules, Privacy Office clearance of
certain intelligence products, and our review and evaluation of
major systems' privacy compliance in preparation for the
Department's annual budget submission.
Finally, you asked about the office's role in the budget
and policy process. My office reviews and evaluates major
systems' privacy compliance in preparation for the Department's
annual budget submission. More broadly, the Privacy Office has
meaningful input into this submission in order to carry out all
of our functions.
Budget reductions and sequestration have resulted in an
inability to backfill key positions that have been vacant. That
we are meeting our obligations really speaks to the commitment
and professionalism of the Privacy Office staff. Maintaining
and strengthening our workforce is a key priority of mine to
ensure that our mission does not suffer.
In closing, I would like to thank you again for your
invitation to address you this afternoon, and I look forward to
taking your questions.
Senator Tester. Thank you very much, Karen, for your
comments.
Wendy Ginsberg.
TESTIMONY OF WENDY GINSBERG,\1\ PH.D., LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE
Ms. Ginsberg. Chairman Tester, Ranking Member Portman,
Senator Johnson, thank you for the opportunity to testify
before you today on technology's effects on Federal oversight.
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\1\ The prepared statement of Ms. Ginsberg appears in the Appendix
on page 59.
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In 1885, Woodrow Wilson said that Congress should use every
means to oversee the executive branch. Otherwise, he argued the
country would remain in embarrassing, crippling ignorance of
the very affairs which it is most important it should
understand and direct.
In this testimony, I make three broad points. First,
evolving technologies can assist in oversight. Second, the use
of these technologies has advantages and disadvantages. And,
finally, technology must be thoughtfully and carefully
implemented if it is to assist Federal oversight.
To my first point, that technology can assist oversight, it
is important to first note that oversight lacks a precise
definition. In fact, it is not mentioned in the Constitution.
Yet, oversight is an implicit obligation of Congress.
It can be performed in various ways to meet many
objectives. Congress has created a variety of tools to assist
its oversight function. Among these tools are hearings,
reporting requirements, general management laws and the
creation of an oversight workforce, which includes institutions
like the Government Accountability Office and the 72 offices of
Inspectors General.
Additionally, Congress and the President have employed new
and evolving technologies to increase information access and,
arguably, have facilitated greater public participation in the
oversight process.
One example of such an initiative is the Obama
Administration's Open Government Initiative, which employs four
core strategies: first, publish government information online;
second, improve the quality of government information; third,
create and institutionalize a culture of open government; and
fourth, create an enabling policy framework for open
government.
Private sector reviews of the initiative suggest that
agencies varied in their open government achievements. Perhaps
to address some of these criticisms, the Administration began
promoting what it called smart disclosure, which requires
agencies to release complex information and data in
standardized, machine-readable formats that enable consumers to
make informed decisions.
Another transparency-related oversight mechanism was the
establishment of the Web site, Recovery.gov. It was created in
compliance with the American Recovery and Reinvestment Act of
2009. The public-facing Web site includes information about the
Recovery Act and the distribution of Federal funding related to
the Act. It, arguably, allowed taxpayers to be in a better
position to hold their government accountable.
Similar technology was used to create other public-facing
Web sites, including USASpending.gov, Data.gov and
Performance.gov.
Additionally, the 72 offices of Inspectors General have
employed technology in a variety of ways to assist Federal
oversight. The variance in department and agency missions,
however, prompts variety in how Inspectors General conduct
oversight and, therefore, disparate adoption of technologies
within the Inspector General community.
A 2011 survey conducted by the Council of Inspectors
General on Integrity and Efficiency found that only 26 of more
than 70 Inspectors General reported using any form of new
media.
Next, to my second point that use of technology has
advantages and disadvantages, employing technology and new
media can assist Federal oversight but can complicate
information security, privacy, legal oversight and records
collection. Continued use of large databases and new media may
require investments in training, equipment, personnel and other
resources. Additionally, existing statutes, regulations or
policies may need to be revisited to determine whether they
encumber IGs, the public or other entities from effectively
using online tools and data to assist oversight.
Technology can assist in government oversight. It can
provide new information and allow overseers to use data in
innovative ways.
Technology and use of new media can assist in
investigations and facilitate public input on agency actions.
Providing interested stakeholders access to information can
allow them to track where Federal dollars are spent, can
provide context on the methodology used to rate the most
effective child safety seat or can provide data on the spread
of the flu virus. This access may help uncover fraud, improve
safety or even save lives.
And my final point, agencies must determine which
technologies to employ based on their mission and their
resources. Technology must be thoughtfully implemented, and
sensitive data and information must remain protected.
Mr. Chairman, this concludes my opening statement. Thank
you for the opportunity to testify, and I look forward to your
questions.
Senator Tester. Thank you, Wendy.
And I want to thank everybody who testified here.
We will put 7 minutes on the clock for questions, and we
will just kind of go down the line.
Peg, you are first. In your testimony, you reported that
two-thirds of the Inspectors General list budgetary resources
as their primary challenge in oversight. At the same time, you
testify that in fiscal year 2012 there was a $17 return on
every dollar that our government invested in IGs.
Well, first of all, this looks like a way to fix a national
debt. How long does this go on before the return becomes less?
In other words, has anybody put any metrics to that to find
out how much you are underfunded?
Ms. Gustafson. Right. I do not think anybody has certainly
put any metrics to effect.
I think, just speaking for my office, we have ways to go
before we start seeing diminishing returns. For example, I
think I am considered a mid-size office. Were I fully staffed
and not subject to sequestration, I think I could have about
100 people.
In the meantime, the SBA loan portfolio is $100 billion,
and small business contracting is, of course, 23 percent of all
Federal contracts. And so, I think, just off the top of my
head, 100 of us overseeing that is small.
Senator Tester. OK. This is for anybody who wants to
answer. It is kind of a lengthy question because it is multiple
choice. OK?
When it comes to agency budgets for IGs, you must ask
yourself, why are you being underfunded? Now is it because you
do not have a seat at the table when agencies submit their
budget? Is it a matter of not placing a high enough priority on
IGs' duties when the budget is being formed compared to other
resources? Is there a conflict because some of the folks you
are requesting oversight from will be part of the folks that
you are tasked to do oversight on? Or, is it a matter of
Congress not providing appropriate amounts of funding? You send
the request in. We whack it and send it back at a lower level.
As with all these, I mean, let us know where it is at. I mean,
who wants to respond to that?
Ms. Gustafson. Well, let me tackle it first----
Senator Tester. Sure.
Ms. Gustafson [continuing]. Especially as a member of the
executive council and Chair of the Legislation Committee.
I have to say one of the things that Congress did for IGs
that was a tremendous benefit--and I hate to say that because I
worked on the IG Reform Act of 2008 because what that does for
us, which is tremendously helpful, is Congress does get
visibility into what the IGs are requesting for their budgets.
And so the way that the IG Reform Act is supposed to work
is you will see what we believe--what we are asking for from
the President and from Congress for our budget. It may not be
the number that the President's budget--may be. It may be a
different number. But you will get both numbers, which I think
is tremendously helpful.
We also have the ability to note if we believe that the
number actually requested for us is too low for us to perform
the functions of our job. We are allowed to note that, write a
letter, and that gets attached to the budget.
Quite frankly, the immediate issue that we have all been
facing in the last few years has been the lack of an
appropriation. I think what many of us have found is when you
look--to get a little inside the Beltway, when you look at the
marks that we are getting and when we look at the committees
are offering us, those tend to be much better than what we are
getting under a continuing resolution (CR), under a straight
line and certainly under sequestration because, again, we are
mostly salaries and expenses.
Just very briefly, the basic breakdown of my budget--and
that is very similar to all IGs. Eighty-four percent of my
budget goes to salaries and expenses. Ten percent is a fixed
price contract for my financial statement audit of the agency.
And 6 percent is everything else, which is every time my
investigator needs to go somewhere to investigate a crime.
So, when you take 10 percent off the top, you are taking
people.
And we have been in that position for a while now.
Senator Tester. OK. Does anybody else want to respond to
that?
Go ahead.
Mr. Horowitz. Just briefly, I have only been on 18 months,
so I am only here on my second budget cycle. But, last year,
what happened is we got the same 5 percent cut as everybody
else did. So there was no distinguishing between IGs' budgets
and other budgets.
As a result, that hits us for the reasons Peg mentioned. It
is basically all salaries. It is hard to find other savings. We
cannot just walk out of our rent space, our space, and all of a
sudden save money.
The other is, also as Peg mentioned, even though our House
mark and what we have requested is higher than 2013, and the
House mark was higher, on a CR, I cannot hire at this point
based on the hope that something will come through. I am either
going to go maybe up on the House mark, maybe down if
sequestration hits.
So, as a manager, I have to understand what my budget is,
frankly, before I can start making hiring decisions.
Senator Tester. OK.
Ms. Neuman. And, Mr. Chairman, may I answer that also?
Senator Tester. Yes.
Ms. Neuman. The best way I can answer that is by just
talking about our budget. If you take sequestration into
account----
Senator Tester. Yes.
Ms. Neuman [continuing]. The Privacy Office's Fiscal Year
2013 enacted funding level was $7.793 million, which is
$614,000 below the level appropriated in fiscal year 2011.
And the main result of this has been our inability to
backfill key positions that have been vacated due to attrition.
And it has resulted in the loss of 4 privacy professionals,
leaving 20 in my office and a backlog of--a FOIA backlog.
It is important to note we do not have a separate budget
for oversight. Our Privacy Office gets one budget that goes to
policy compliance and oversight. And with the funding levels
being what they are, we are doing what we can with what we
have, but it will--the effect is to have fewer people to
conduct investigations, do privacy compliance reviews and
investigations.
Senator Tester. Maybe we should have an IG report on how
much the fact that you guys do not have the personnel you need
is costing the government--the IGs.
I mean I do not have a clue if anybody has ever done any
work on that. You probably do not have time to, and nobody has
requested it.
But the truth is if you are talking about $17 per dollar
invested--and, Peg, you said we are nowhere near the point
where we could top out--well, it is not good government. Let's
just put it that way.
I will turn it over to Senator Portman. Senator Portman.
Senator Portman. Thank you, Mr. Chairman, and thank you all
for coming in.
I am probably going to start with Ms. Gustafson only in
that you are chairing the IG Legislation Committee.
On the budget issue, I think Chairman Tester asked a good
question, which is, are you at the table?
And I guess the other question is--and anybody should feel
free to answer this. Assuming that you are at the table, I
understand what you are saying about the Appropriations
Committees being a better way to get your funding than through
a CR because appropriators appreciate your work for the most
part. I know sometimes they may disagree with you--and are
likely to see the value of the return on investment you talked
about.
But do you feel in a CR environment, and particularly a CR
and sequester environment, that you guys are getting a
disproportionate cut, and do you have any data to back that up?
Ms. Gustafson. I think that the one thing that is
troubling, too--and I cannot speak for every IG because every
agency, I think, kind of treated it differently. But I think
one of the things that was a source of some frustration for
IGs, as Mr. Horowitz had mentioned, is, when these across-the-
board cuts come, they are not supposed to be--and that is where
we really do not have as much of a seat at the table because it
is just a directive to do an across-the-board cut.
I think some of us found ourselves being subject to just
the 5 percent cut whereas it seemed that the agencies were
being told, do kind of a cost-benefit analysis; do not do just
across-the-board, but figure out where this 5 percent should be
applied.
I think sometimes that is not happening. I cannot say that
this is not the same across every single agency, but I think
that sometimes it is not happening.
I have found, for example--again, just anecdotally as far
as the budget request--when the agency has been asked, find 10
percent but, again, do that kind of analysis, they take 10
percent from me.
Now I benefit again--and I think we all benefit--from the
fact that I do not then submit a 10 percent cut to the
President. I submit my number. And through the budget process,
I, again, have been pleased--again, this is the appropriations
process--with the President's request for myself.
I do not know if anybody else wants to add.
Senator Portman. Yes, Mr. Horowitz.
Mr. Horowitz. I do feel like I have a seat at the table and
am heard by the Attorney General, and I do not think that has
been the issue.
I only have 18 months of experience, but the bigger
challenge for me, frankly, has been living on a CR, not knowing
if sequestration is going to go into effect or not, managing
and figuring out whether I can or cannot hire because I am
either looking at squeaking by next year or being able to hire
and fill some of the vacancies, but I am going to be halfway
through the fiscal year or close to that before I can do that.
And, frankly, with all the security clearances my folks
have to go through----
Senator Portman. Yes.
Mr. Horowitz [continuing]. It takes many months. There is
such a lag time between losing someone and hiring someone. It
is a tremendously difficult thing to manage.
Senator Portman. So it is the uncertainty.
But you do not feel as though there is a disproportionate
cut in your office as compared to other offices at Justice
under sequestration?
Mr. Horowitz. No, I do not think I can fairly say that.
I think it is the bigger question of the across-the-board
and the importance, frankly, as Peg said, of stepping back and
saying, where is the value-add and where do we have the ability
to cut, and making that analysis. That would, obviously, be
helpful from my standpoint.
Senator Portman. On the vacancy issue, quickly, we talked
about that in my opening statement, and some of you addressed
it briefly. But, frankly, I think that issue is a real concern.
The 2008 law, it seems to me, has been helpful. Do you
agree with that?
Two thousand nine was kind of the low watermark, right? I
mean, it was kind of the----
Ms. Gustafson. Yes. I do not recall the historical level of
vacancies. I do know the 2008 law addressed a little bit the
idea of CIGIE keeping a list of potential candidates for IGs,
which I know that this is done and that list is always
available to both the President or to the agency, depending on
how they are chosen and how they are hired.
But, I think it has gotten better in the recent past, but
it does seem to fluctuate.
Senator Portman. Do you support what we are doing here in
terms of confirmations on IGs? Do you have thoughts on that?
Ms. Gustafson. Well, I think it was very heartening, if I
can speak for the IG community, that two of our very well
respected IGs were just confirmed very quickly for State and
for Defense, and I think that has to have been seen as a
favorable process.
Again, it seemed to me that the nomination process went
very smoothly. From the day of intent to nominate and to the
day they were confirmed was a fairly short amount of time----
Senator Portman. Yes.
Ms. Gustafson [continuing]. Which is, obviously, a positive
thing.
Senator Portman. And this Subcommittee and this Committee
are sort of the champions of trying to get our IGs through. So,
when you have issues, I hope you, as the Chair of the
Legislation Committee, will come to us.
I think one thing, if you can get it in the record, that
probably would be helpful, is to say what is the impact of not
having a permanent IG?
In other words, if you have Acting IGs, how does that
affect the morale of the office? Is there a wait-and-see-what-
happens attitude among folks when you guys are dealing with
your counterparts in the agency?
In other words, this person is not going to be here
forever. Why don't I just see if we can wait him or her out?
Ms. Gustafson. I think it is hard to make a universal claim
about what the effect of an Acting IG is because, quite
frankly, it seems to me, having been even on both sides, having
worked on the IG Reform Act and now having been an IG for over
4 years, an Acting IG has all the ability to be as independent
as a permanent IG, which is to say the great things that the IG
Act does that gives the IG that independence are available to
an Acting IG as well as a permanent IG. So, there is not a
structural problem with that.
As to the other part of your question, whether some things
are waiting for the permanent person to come, I think that
would also depend on the Acting IG. I know that when I came in
to my office that my Deputy Inspector General (DIG) had been
Acting for a while. I think, in general, the place was running
quite smoothly.
Quite frankly, there were some policy decisions that I made
when I came in, to take it in a different area. There were some
changes I made.
But whether things were being held off, I think, depends
on--it really gets down to the individual office and how that
Acting IG is doing.
Senator Portman. OK. I would think continuity would be
affected, and just accountability.
Ms. Lerner, you mentioned you are protector of the merit
system laws.
And, as you know, Senator Tester and I have recently been
working with you.
And you sent a letter to the DHS Acting Secretary, Beers.
So the Department of Homeland Security does not have a
Secretary or a lot of positions filled, but the Acting
Secretary was asked to provide you information regarding this
recent report you guys did administratively uncontrollable
overtime (AUO).
And, as you know, this administratively uncontrollable
overtime is supposed to be very limited. In fact, the statute
says it should be used for irregular and occasional
circumstances only, such as if a failure to stay on duty would
constitute negligence, so a very narrow kind of overtime.
And, looking at it, you determined that these improper
claims of overtime have reportedly cost the Federal Government
up to $9 million annually at 6 DHS offices, reported by
whistleblowers to you. The amount of annual abuse of this is
unknown because we do not have the information yet.
Senator Tester is holding a hearing on this in the next
month, and we look forward to that hearing, but just a couple
process questions for you on how organizations respond to
situations like this because we are concerned about the lack of
response.
The statute that governs these responses requires agencies
to describe any action taken or planned as a result of the
Office of Special Counsel investigation. To me, the response to
you from DHS seemed totally lacking in detail, specifically,
anything about any disciplinary action against employees. And I
guess we can either assume that there were not any actions
taken or that they are not telling you what actions were taken.
Can you comment on this briefly?
I want to get to my colleagues' questions. So we can maybe
do a second round on this. But, just briefly, does this happen
often, that agencies do not fully respond to your requests, and
do you think it is consistent with the requirements outlined in
the statute--the way they responded from DHS?
Ms. Lerner. Well, I think there are several parts to your
question. Let me sort of address the process one first.
You are absolutely correct that the agency has to respond
to us when we send over a disclosure, and the type of response
that we got from DHS was actually pretty much on par, if not
better, than some of the responses that we get because DHS did
confirm the allegations that the whistleblowers made. They did
not deny the allegations at all.
So I took some measure of comfort from the fact that they
admitted that they had a problem and, at least on paper, said
that they are taking responsibility for fixing it.
Now the problem is they said the same thing 5 years ago. A
very significant portion, like maybe a quarter, of the report
that we got back recently was basically cut and pasted from the
report that we got back 5 years ago when the same allegations
were sent over there for investigation. So not much has
changed.
The other thing that has not changed, as you mentioned, is
the detail about what they are going to do to fix the problem.
The action plan, if you will, that they gave us this time
mirrors the same steps that they said they were going to take 5
years ago, with the exception of a new video that they plan to
show to all employees.
So it is a little bit bare-bones in terms of what they are
going to do to fix this problem.
They have said that they are going to do a full audit of
this problem. So let's hope that that helps expose both how
deep the problem is--how widespread it is--and how they might
fix it.
Senator Portman. Let me cut you off there because I want to
get to Senator Johnson's questions, but if we can do a second
round, I will have some other questions for you about how they
responded.
Ms. Lerner. Sure.
Senator Portman. Thank you, Mr. Chairman.
Senator Tester. We will be doing a second round. Senator
Johnson.
Senator Johnson. Thank you, Mr. Chairman.
Ms. Gustafson and Mr. Horowitz, I guess I would first like
to start out asking, how do you prioritize your cases for
investigation?
Ms. Gustafson, we will go with you first.
Ms. Gustafson. I have about 45 criminal investigators. And
they are spread out throughout the country. So I think there
are any number of factors go into how they are prioritized,
including the caseload of the investigators that I have.
My criminal investigators work very closely with DOJ, U.S.
attorneys, assistant U.S. attorneys, and very often the
decisions on whether a case is a go or no-go often is dependent
or contingent upon talking to DOJ, seeing the likelihood of
that case, of course, being accepted for prosecution because it
is important that we do that.
So, in addition, of course, certainly the amount of loss is
always a factor in any case. For my investigators, again, the
two biggest things that we are looking at are loan fraud in the
SBA lending programs and then small business contracting fraud.
And so, one of the emphases I made was to reemphasize a
little bit the contracting fraud. Those cases sometimes went a
little bit by the wayside, and so we put more of an emphasis on
that.
And I think that that plays a part in that, which has
resulted in some of our biggest cases, including a $100 million
contract fraud case, with a billion-dollar contract that was
about to be awarded fraudulently that we had a couple years
ago.
So there are any number of factors.
Senator Johnson. So, I mean, likelihood of prosecution or
quality of the prosecution, then the dollar amount.
Mr. Horowitz.
Mr. Horowitz. If it is a criminal allegation involving
Justice Department employees or Justice Department funds, we
will investigate it. We will open an investigation and go
forward.
I have had occasion where I have had to call the U.S.
Attorney because my personal view, having been a prosecutor on
corruption cases before, is the dollar value in a corruption
case should not matter, like it should in many others. If a
public official is taking money, that warrants--and you can
prove it as a crime--that warrants prosecution.
In the noncriminal context, because we get thousands of
various pieces of information coming across, first off, as I
mentioned earlier, we do not have authority over attorney
misconduct in the course of attorney work. That is a problem
from our standpoint. So those cases go back to the Department.
They investigate themselves in that instance.
For non-attorneys, we will look at the seriousness of the
allegation. We take high-level official misconduct. So GS-15
and above--generally, we will look at that.
And then, separately, we assess in the remaining cases,
what is the need for independent oversight? What value do we
bring as an independent oversight authority to look at that?
Senator Johnson. OK. I just kind of want to explore your
relationship with the agency and the Department and your
independence.
Let me first ask, what is--and I realize this is kind of
hard to summarize or typify. But, what would be a ballpark in
terms of how long you want to take on an investigation?
I mean, how quickly do you want to get through something?
What would be an average length of time for an investigation?
Mr. Horowitz. Well, let me speak from our standpoint. We
have such a wide range, frankly, of allegations. We have some
in the prison, and we have the prison system. We might have a
video that will take a very short time. Other more
sophisticated, grant-related frauds that could require us to go
administrative or grand jury could take months and years. And
we do not control some of those because those then to go the
prosecutor, and they have to bring them.
Senator Johnson. OK. Well, let's talk about timing of the
release of a report. Who is in charge of that? Is that strictly
a call made by the Inspector General's Office?
Mr. Horowitz. In a noncriminal case, we would make the
call. In a criminal case, obviously, it is going to be the
indictment, and that is the prosecutor's control.
Senator Johnson. In terms of the reports you issue--and I
will ask both of the Inspectors General this--what is the
appropriate relationship between yourself and the agency or the
department you are investigating?
Mr. Horowitz. From our standpoint, when we do an
investigation, we do it--of the Department--if it is a third-
party, for example, we might have the FBI where we----
Senator Johnson. I am just talking about if you are talking
about your Department.
Mr. Horowitz. Right. Internally, we do it ourselves. We
talk about it ourselves. And, when the time comes, like in Fast
and Furious, to issue the report, we send the proposed final
report for comment, and that is when the Department gets its
first chance to comment.
Senator Johnson. So it would be totally inappropriate for
the Department to comment or see the report ahead of time,
before it is released?
Mr. Horowitz. We will give them a chance to review our--for
example, in audits, investigations--audits and reviews--let me
do audits and reviews.
We will give them a chance to review and provide us, in
some instances, with informal comment but always with formal
comment, which is what you see attached.
Senator Johnson. OK, but that would be a comment. It would
be an addendum to the report.
Would they be changing wording in your report?
Mr. Horowitz. They would not have authority to change
wording.
In audits, for example, we will often sit down with the
component and say, here is what we found. Here is a problem.
For example, ATF undercover operations that we just did, we
found unreconciled $100 million worth of cigarettes. We went to
the Department when we heard about that to alert ATF and the
Department that they needed to fix the problem.
Senator Johnson. OK.
Mr. Horowitz. So, for example, in that instance, they would
know even earlier in the process.
Senator Johnson. But the department or agency would not
change the wording of your report.
Mr. Horowitz. We would not let them change the wording.
Senator Johnson. They could read----
Mr. Horowitz. They could comment to us.
Senator Johnson. So it would be totally inappropriate if an
agency or a department changed wording with a report?
Mr. Horowitz. I would not allow the Department to edit my
document.
They might give me comments. They might say I have it
wrong. We would then sit down and talk about it internally, and
we make the decision.
Senator Johnson. Ms. Gustafson, do you agree with that?
Ms. Gustafson. I do agree with that, again, and I have to
say for myself I am basically talking about the audit context.
My criminal investigators, again, that we are talking
about----
Senator Johnson. OK. I am talking about a report on your
agency or your department.
Ms. Gustafson. Right. The reports that we issue are done by
us. Certainly, there is always a lot of communication between
the agency.
There is no question, though I am not an auditor, that they
are probably suggesting language. But, do they get to dictate
language and edit and then have final say? No, absolutely not.
Senator Johnson. Would either of you ever--or would it be
appropriate for you--to utilize the agency or the department's
counsel in any capacity?
Mr. Horowitz. The Department actually does not have a
general counsel. It has the Office of Legal Counsel, and we
would not necessarily go to them for guidance or legal advice.
Senator Johnson. Ms. Gustafson,
Ms. Gustafson. No. As the IG Reform Act notes, we have our
own counsel.
Certainly, OGC always has their own opinion of the legal
issues in our audit reports, and we get to hear those, but we
do not rely on them.
Mr. Horowitz. Let me echo that. I go to my general counsel
regularly on issues. That is where I would go.
Senator Johnson. But, again, your general counsel in the
IG's Office, not the Department's.
Mr. Horowitz. The IG, correct.
Ms. Gustafson. Yes.
Senator Johnson. OK. Thank you.
Senator Tester. OK, I want to talk a little bit about
overclassification. It is something both, quite frankly, of
information and of positions. It has something that has come to
light in a number of different areas. It is something that I
actually feel very strongly about because it compromises
transparency and it impairs our ability to perform quality
oversight.
The question is, have you run into situations where you are
not able to get information due to overclassification?
Anybody who wants to answer that can.
Ms. Gustafson. First off, I am supposed to, under the IG
Act, have access to anything that I need from my agency, and so
what they are classified as should not dictate what I get to
see or not see. Section 6 of the IG Act is very clear about
that.
Senator Tester. So, if it is classified as being secret
information of any type, you still have access to it?
Ms. Gustafson. I have. There are people in my office who
have. For example, I have a top secret clearance. There are
people in my office--I mean, we have people who have certain
clearance levels just as the agencies do.
Senator Tester. Sure.
Ms. Gustafson. And, for example, if we have worked on
audits--we have done audits on DOD projects, for example.
Senator Tester. Sure.
Ms. Gustafson. I had a team of auditors who actually I
stole from DOD IG, who came with top secret clearances. If we
needed to see that information, they would have the auditors
who would see it because they would have the appropriate
clearance levels.
So we have not encountered that problem.
Mr. Horowitz. In terms of the Department saying we cannot
look at classified information, we have not had that problem.
We have had discussions, though, as I referenced in my
testimony, to a question being raised whether we are, for
example, allowed to see raw FISA data, which--as you know, we
do many reviews related to FISA. That would be problematic for
us.
We have not had it withheld from us. We have worked through
the issues. But that is, for example, one of the issues that we
occasionally deal with.
The other context that this comes up is when we want to
issue a report we fight very strongly to have the report go
public in as great a detail as it can, and we often get faced
with, in our view, the initial response being overclassified,
whether law enforcement-sensitive, which is a separate
category, or actual classification. We end up pushing back very
strongly and having in many instances, I will call it, a robust
discussion internally.
We ultimately do not control the final decision because it
is not our information, but we do push forward very
aggressively in ensuring that when we think there is an
overclassification in response to our report we fight
internally and often elevate it within the Department and
frequently prevail, frankly.
Senator Tester. Anybody else want to respond to that?
[Pause.]
So let me ask it this way. From your answers--do not let me
words in your mouths--I am not hearing that there is any
impediment as far as getting information regardless of the
classification.
Ms. Gustafson. I am not aware of impediments regarding
classifications.
Senator Tester. OK.
Ms. Gustafson. I am aware there are sometimes IGs--and I
think Mr. Horowitz has some of his own specific examples--how
some laws are thrown up, saying--thrown up to them, saying you
do not have access because of this specific law, and then IGs
need to work through that.
Again, the IG Reform Act is supposed to give us access to
that, but I have not heard of classification being an issue.
Mr. Horowitz. Right. As Peg said, it is an issue that has
been thrown up. We have had to work through several and various
areas, not necessarily the classification issue, but on the raw
FISA information area--it has come up. It takes many months.
To the point of how long does it take sometimes to do our
views, they are greatly impacted by those back-and-forths. So
it can take months.
Senator Tester. OK. Ms. Neuman, your office handles privacy
policy within DHS. It has sought to create an environment in
DHS where neither privacy nor security is compromised--an
admiralable task, tall task, especially in an agency like DHS
that has something like 22 agencies in it. Many interact daily
with literally millions of Americans.
How successful have you been?
Ms. Neuman. Well, in the short time I have been here, I
have to say that I think we have done a really good job. We
have been very successful. We work very closely with our
component privacy officers and privacy points of contact during
the development of programs and systems to build privacy in on
the front end, to build privacy protections in on the front
end.
All of this is documented in our compliance documents, the
PIAs I mentioned earlier, which serve a really important--two
very important functions. One is transparency to the public so
they know what information is being collected and how it is
used, but it is also used--these PIAs are also used to help
provide benchmarks for the oversight process so that the
privacy risks are identified.
Through the PIA process, we work to develop very strong
mitigation mechanisms to protect privacy, and then we refer to
those benchmarks during PCR reviews and other assessments of
how effective the privacy protections have been. And we update
the PIAs as necessary. They are posted on our Web site.
So you are right; it is a very challenging job, but our
mission is to sustain privacy in the systems and programs that
the Department is implementing and developing.
Senator Tester. Can you give us an example of where your
office has interjected itself into the process to voice its
concerns over privacy?
Ms. Neuman. Well, there are a number of programs that are
developed to collect information, whether it is at the border
or from passengers traveling into the country, students coming
in on visa programs. And we are very careful that the
information is collected only for a specific purpose. We pay
very close attention to retention periods so that information
is not collected longer than is necessary to accomplish a
purpose and that access to that information is really limited
to people who have a need to know that information or/and a
need to use that information to carry out their
responsibilities.
Senator Tester. OK. Michael, the same series of questions
as far as privacy goes--is there a time where you have been
able to be successful in balancing that, or is that not an
issue in your Department?
Mr. Horowitz. The privacy issue for us really does not
arise in my office.
Our view is we are independent. We make our own decisions
on those issues.
We push very strongly to put forward publicly, as long as
it is legally allowed, and obviously, the Privacy Act plays
into this. We want to be transparent. We want our reports
public. We want the information posted on our Web sites.
The issue comes back in pushing on what is law enforcement-
sensitive and some of the other issues that we struggle with.
Senator Tester. All right, Senator Portman.
Senator Portman. Ms. Lerner, going back to the previous
questions we had about administratively uncontrollable
overtime, your response sort of surprised me because you said
you thought this was about par for the course in terms of the
response from DHS. You were pleased that they did not deny the
allegations; in fact, they admitted them. You also noted that
they had essentially done that 5 years ago and that you were
still concerned about the kind of follow-through you would get.
Let me just ask you specifically about whether you think
the current statute gives you the authority you need to get the
information that you need.
The statute is 5 U.S.C. Section 1213(d)(5). It says,
agencies are required to describe any action taken or planned
as a result of the OSC investigation.
However, it uses the term, such as, and it says, such as
changes in agency rules.
The restoration of any aggrieved employee is what we were
talking about earlier, that you do not know whether there has
been any disciplinary action taken.
Ms. Lerner. Right.
Senator Portman. Disciplinary action taken against any
employee, referral to the IG of any evidence of criminal
violation, changes in rules, and so on.
Do you think it would be helpful for you, in terms of
getting the responses you feel that you need, to have that a
requirement in the reporting in the statute, or do you think
you have the authority that you need to be able to get to the
bottom of these?
Ms. Lerner. Well, unlike prohibited personnel practices,
where we have, for example, a retaliation case after someone
comes to us with a disclosure--and we do have some of those in
the DHS matter too--the agency does have to let us know what
actions they have taken or will take as part of an agreement
with our agency. And I think that is very helpful.
Of course, in that context, we have the ability to actually
prosecute cases to the MSPB and either require the agency to
take disciplinary action or make sure that the whistleblower is
made whole if they have been retaliated against. So we can
require the agency to take remedial action.
We do not have that same ability in the disclosure context
under, as you said, 1213(d). We do not have independent
investigative authority.
In assessing whether the report from the agency is
reasonable or not, one of the things that we look at is what
remedial action they have taken.
So the reason that I found the report inadequate was not
because they did not come up with the right outcome in terms of
verifying the allegations; they did.
The reason I found it inadequate was because they had not
taken effective remedial action and because their steps for
solving the problem were not appropriately outlined, and it
left me with the concern that they did not have the ability or
the willingness to take corrective action.
Senator Portman. OK, given the history, but I guess what I
am questioning is whether you even have adequate information to
know whether they have taken remedial action because they were
not required to tell you.
Ms. Lerner. Well, they were not required to tell me if they
took disciplinary action. They were not required to tell me if
they were trying to figure out whether the overtime that was
being taken was actually fraudulent overtime versus just
inappropriate overtime.
They are required to tell me what steps they are going to
take to solve the problem.
Senator Portman. Like the video.
Ms. Lerner. Like the video.
Senator Portman. Yes.
Ms. Lerner. They outlined a few steps.
Senator Portman. But not disciplinary steps and so on.
Ms. Lerner. That is right.
Senator Portman. We will get into this more in the hearing,
and I just wanted to prepare us maybe better for the hearing by
getting your input on that.
Ms. Lerner. Sure.
Senator Portman. Our job is, among other things, is to look
at legislation. So we are going to be looking at that code
section. If you have additional thoughts, I hope you will let
us know.
Ms. Lerner. OK.
Senator Portman. On whistleblowers, we talked a little bit
about this. Mr. Horowitz, maybe you are the right person to
talk to since you have had some experience here.
In 2006, the IG at Justice testified before another
congressional committee. This is Glenn Fine, and he said that--
this is in the context of FBI reprisals against whistleblowers
by revoking an employee's security clearance. You are probably
familiar with this.
Mr. Horowitz. Mm-hmm.
Senator Portman. He testified, ``The IG would have
authority to investigate an allegation that an employee's
security clearance has been revoked in reprisal for protected
disclosure under its general authority to investigate
allegations of misconduct, fraud, waste and abuse in the
Department.''
He also stated that the FBI official said that they were
not familiar with any case in which an employee alleged that
revocation or denial of a security clearance was in retaliation
for protected disclosure.
A couple questions--one, do you agree with IG Fine's point
on the authority of your office to be able to do that, and are
you aware of any instances in which an employee has alleged
that revocation or denial of a security clearance was in
retaliation for a protected disclosure?
Mr. Horowitz. I do agree that we would have the ability to
go forward as he suggested.
I do not, as I sit here, recall any such instance in my 18
months on the job, but I can certainly go back and check on
that.
Senator Portman. Have you ever investigated an allegation
of reprisal based on a security clearance being suspended or
revoked?
Mr. Horowitz. We do have several reprisal cases going on,
and I would have to, frankly, go back and see if that was one
of the components of the claim. There may be one, but I would
want to double-check.
Senator Portman. OK. I think it would be helpful to me if
you would get back to me on that.
Mr. Horowitz. I will do that.
Senator Portman. Given some information that we had
received, we just want to try to confirm or determine whether
it is an issue or not.
On the privacy issue, Ms. Neuman, you responded to the
Chairman's questions about how your office operates within DHS.
You were pretty positive about that and the experience you have
had there.
Can you give us a specific example of where your office has
interjected itself into the process to voice a concern over
privacy?
Ms. Neuman. Let me answer the question this way. I am not
sure that I would see us as interjecting ourselves. We foster a
culture of privacy throughout the Department. And included in
the context of oversight, part of that culture is encouraging--
in fact, requiring--the reporting of privacy incidents.
We do so in a way that encourages people to come forward
without fear of reprisal or humiliation, and we would initiate
an investigation if we found evidence or allegations of really
egregious conduct or willful noncompliance with Department
policy or directives.
We work with the components to address problems. We often
find that we do not have to get involved or initiate resource-
intensive full-scale investigations. We are really able to
address issues throughout privacy compliance review process,
which is a collaborative process that enables us to make--to
validate that the privacy requirements are being adhered to.
So I see us as really working collaboratively throughout
the Department and not interjecting ourselves absent the need
to do so for really egregious conduct. And we have initiated
three investigations where we felt it was necessary to
investigate conduct that was brought to our attention or that
we otherwise discovered.
Senator Portman. OK. If you are at liberty to provide us
that information, that would be helpful.
Ms. Neuman. One of them was public.
Senator Portman. No need to do it now. We want to get on to
Senator Johnson's questions.
Ms. Neuman. Certainly.
Senator Portman. But if you would not mind in writing to
provide that to the Subcommittee.
Ms. Neuman. Certainly.
Senator Portman. Thank you very much.
Senator Tester. Thank you, Senator Portman. Senator
Johnson.
Senator Johnson. Thank you, Mr. Chairman.
Ms. Gustafson, in your position as Chair of the Legislation
Committee of CIGIE, I just kind of want to walk through a
couple questions.
First of all, when there are allegations of wrongdoing or
reports of wrongdoing in the Inspector General's Office, can
you just quickly walk us through exactly how CIGIE handles
those?
Ms. Gustafson. So the IG Reform Act of 2008 codified the
Integrity Committee, which I will tell you existed before the
IG Reform Act. The Integrity Committee was in existence.
And it is there specifically to investigate allegations of
wrongdoing by IGs or by those direct reports of IGs where an
investigation could not be done by the IG Office due to a
conflict, our head of investigations or our DIG, so that when
an allegation is received--the Integrity Committee has a Web
site and a number.
Some people would report those allegations directly to the
Integrity Committee, which is chaired by the FBI. And then the
Integrity Committee is comprised of the FBI, four Inspectors
General chosen by the Chair of the Council and also Office of
Special Counsel and Office of Government Ethics.
The FBI chairs that and takes those allegations, and it
goes through a process of determining whether it should be sent
to Justice, determining whether an IG needs to answer it.
If the allegations come through some other way--sometimes I
believe these allegations are sent to CIGIE themselves. CIGIE
has an office, seven employees, an executive director.
I think sometimes the allegations are conveyed to the Chair
of the Council. Those are always sent right to the Integrity
Committee for the process. All allegations are processed the
same way and go through that process.
I do not know if you want me to walk through that process a
little bit.
Senator Johnson. No, let's try talking about it
specifically. Has CIGIE received allegations from the then-
Acting and now-Deputy Inspector General in the Department of
Homeland Security?
Ms. Gustafson. Well, unfortunately, I do not know the
answer to that question because I certainly have not. I am not
being facetious. I do not know.
I know this is has been a topic of discussion.
I believe that to the extent that any allegations have been
made and they have been sent to the Integrity Committee, I was
not----
Senator Johnson. You would have no knowledge of that then?
Ms. Gustafson. I have no personal knowledge of that.
My understanding is any allegations received by any--about
any IG are sent by CIGIE which, again, would be the Executive
Director or the Chair, to the Integrity Committee.
But I do not have personal knowledge of that. I was in a
briefing it was--where they talked about that is the process
they would have taken, but I do not have personal knowledge of
what IG----
Senator Johnson. Well, let me ask anybody in the panel. Is
anybody on the panel aware of any allegations of wrongdoing on
the part of now-Deputy Inspector General of the Department of
Homeland Security? Anybody aware of that? Ms. Lerner.
Ms. Lerner. Senator Johnson, I do sit on the Integrity
Committee. I am recused from any matters involving the DHS IG
because the same allegations are at my agency. So I cannot
speak to you specifically about anything, and I probably could
not in this public forum anyway.
But I can confirm that allegations were at least being
considered. I do not know the status now. As I said, I am
recused.
Senator Johnson. Anybody that is not recused that can
answer the question? [Pause.]
Then I have no further questions.
Thank you.
Senator Tester. Wendy, you cannot get off. The technology
and how IGs throughout government are utilizing it--how would
you grade them on utilizing technology in their jobs as
Inspectors General, whether it is getting to the problem of
problems or getting information out to the citizens?
Ms. Ginsberg. If you are asking about the Inspectors
General specifically, the best resource for that that I could
find was the Council of the Inspectors General on Integrity and
Efficiency had their own report on the use of new media. And,
as I said in my testimony, they did not have a high level of
respondents for that particular ask of information on how many
IGs were using new media, but only 26 of the 72 existing IGs
responded that they were using any form of new media
whatsoever.
Senator Tester. So what you are really saying is that they
would have been utilizing it they would have probably
responded.
Ms. Ginsberg. My thinking on it was if they were doing
something incredibly innovative they probably would have
responded.
Senator Tester. OK. Let me ask you about information being
put out there for public consumption when there is so much of
it that actually dilutes its effectiveness.
Is there anything that we can do--quite frankly, because
transparency is a big thing in any part of government--that
could help make it so it is more accessible to folks? It might
be out there, but it still might not be accessible.
Ms. Ginsberg. Well, I think the Smart Disclosure Initiative
is one way. The Administration is trying to tackle exactly that
problem, that you just cannot pour reams of data out there and
expect that every user who has an interest in finding a
particular data point can find that data point. You get lost in
the big haystack and cannot find the needle.
But Smart Disclosure is an attempt to put this data in
machine-readable formats that allow interplay between sets of
databases. It is a way to try to get through and find at least
a few needles that might fit together and create something that
is more usable to individuals and the public, so they can
assist in Federal oversight, or create really new, incredible
apps that help people in their daily lives.
Senator Tester. These guys have enough to do, plus, with
short budgets and sequestration.
Who would be responsible to give some guidance on that so
that--whether it is apps or whether it is----
Ms. Ginsberg. It has historically been communicated
through--the Office of Management and Budget has come out--they
have been in charge of creating a lot of the public-facing Web
sites with the Electronic Government Fund that is administered
through the General Services Administration (GSA).
Senator Tester. Yes.
Ms. Ginsberg. So I think that they have done a lot of
writing of guidelines and memoranda to help agencies figure out
how to frame what data sets they should be releasing in making
information more accessible to the public.
Senator Tester. OK. This next couple of questions are for
the Inspectors General. We rely upon your oversight work to
shed light on misconduct and waste in the agencies. Who is
ultimately responsible for policing the work that you do?
Ms. Gustafson. Well, it depends on what you mean by
policing, but as I--because there are a couple different----
Senator Tester. Well, let me put it this way. If you have
an IG that is really not doing their job----
Ms. Gustafson. Right.
Senator Tester [continuing]. Who checks? Where is that box
checked at?
Ms. Gustafson. Well, just to reiterate, first off, as far
as allegations of wrongdoing or things that are serious enough
to suggest that an IG should not be an IG, that is the
Integrity Committee. Those referrals are made to the Integrity
Committee.
And, just so you know, in the context of that process, DOJ
Public Integrity Group also is referred to anything where there
may be allegations of criminal wrongdoing.
Senator Tester. Yes.
Ms. Gustafson. As far as making sure that our work is up to
standards, all of our offices are subject to peer review. Our
audit shops receive a peer review every 3 years from another
audit shop. Those of us with law enforcement authority undergo
a peer review as well from another IG every 3 years.
But, as far as whether we are being as effective as you
want us to be, we are reportable to Congress, and of course, I
am reportable to the President.
And whether I am doing the best job, in general, what that
is, is that is up to you to make hay about it if you do not
think so and the President to remove me if he does not think
so, with 30 days notice, too, as to why.
Senator Tester. Yes, but here is the problem from our
perspective, and I do not want to give you guys a way out here,
but unless somebody is doing the evaluation of you, I guarantee
you--well, maybe Senator Portman can, but I cannot evaluate the
work that you are doing. I do not have the skill set to do
that----
Ms. Gustafson. Right.
Senator Tester [continuing]. In a way that is fair and
effective.
Ms. Gustafson. Right.
Senator Tester. So where do we go to get the information?
Ms. Gustafson. Well, again, I think that if it is a
function of whether we are working under standards our peer
reviews are posted on the Web sites, and whether we pass peer
review.
But, as far as whether we are up to snuff, I go to
hearings. The Small Business Committee will have hearings very
regularly where they will, I think, have a little bit more
insight into whether I am doing the job that they think I
should be doing just because of, obviously the subject matter.
I am sure Mr. Horowitz has the same type of thing.
But, as far as the effectiveness, we issue semiannual
reports that talk about the accomplishments that we have made.
One of the things that I think is often very useful myself
is we issue the top management challenges from the agency. That
is a report that we issue annually. Personally, I think that
that is a good arbiter of how effective we are because the
agency has to--I think it shows whether the agency is listening
to us, paying attention and whether the big problems are being
fixed. I think that is often sometimes a good measure.
I think there are any number of things that way.
I do not know, Mr. Horowitz, if you have something to add.
Mr. Horowitz. And, just briefly from my standpoint,
frankly, having been on the job for 18 months and seeing what
we can do and the impact we can have, if you are not seeing
strong, solid reports from IGs, they are probably not doing all
they can because there is a fair amount of follow-up work,
audits, investigations and reviews that can be done that, if
they are done aggressively, will find things.
And so I think one of the things that is very important is
getting those reports out publicly and getting them out to
Congress.
And I think also, frankly, from the discussion we have had
today, we in the CIGIE community need to be as transparent as
we are with our own agencies. We, as a community, should be
putting out there what we are doing to self-police and self-
patrol so that taxpayers know what we are doing and whether
they are getting value for what we are doing.
Senator Tester. OK, Senator Portman.
Senator Portman. Thank you, Mr. Chairman.
And thank you all for being here today. We will continue to
be in touch with you and your colleagues.
To Ms. Ginsberg, I have to ask you some questions here
because you kind of left out earlier. The Chairman started with
his, so I will, too.
On this whole issue of technology, we are in the middle, as
you may know, of looking at security clearances--this
Subcommittee. This comes out of a longer interest but
particularly the horrific events at the Navy Yard and how that
guy got his clearances. We had been into it a little bit on the
privacy side, protecting some of our most important government
secrets.
And what we are trying to do is figure out how we can, on
the security clearance front, get better access to databases,
sometimes within the government, sometimes outside the
government, for more expedited clearances, more thorough
clearances and that sort of thing.
So just hearing your testimony and your response to the
Chairman's other question, can you tell us more about how the
Inspectors General should appropriately access data?
You talk about the fact that there are so much more data
out there and that that is good because the public now knows
more about how their government operates.
When I was at the Office of Management and Budget, we put
all grants and contracts online, and I was a strong proponent
of that. That actually came out of legislation in this
Committee as I recall.
But the reality is someone has to analyze it and do the
sort of next-level analysis to determine whether this
information is the right information coming from agencies--in
other words, if it is accurate, if the agency is doing what it
says it is going to do.
And also, I think there is a responsibility among the IG
community to look beyond the data and sort of say, is this the
right data?
In other words, you might have a whole lot of data on
certain issues out there from, say, the Department of Justice,
but other stuff--I mentioned whistleblowers earlier and some of
the reprisal issues--that might not be out there. So how to
sort of balance that out?
Anyway, what are your thoughts on that, Ms. Ginsberg, and
can the IGs use data more effectively to do their important
jobs?
Ms. Ginsberg. I think it is certain that data can be
helpful to figuring out the best policy options and the
oversight process generally. But I will say that more data does
not necessarily equal better; more use of new technologies and
new media does not necessarily mean you are going to better
execute your mission.
You have finite resources. You have to spend them in a way
that is the best way to execute your mission. So just going out
here to find as many databases that you can get access to is
maybe going to encumber your mission more than anything else.
You are just going to get more background noise than the
information that you actually need to execute what you want to
execute.
So I think it is more of a strategic game about figuring
out what media might best suit your needs.
And I think earlier Ms. Gustafson talked about the issues
that exist with the Privacy Act that inhibit data matching in
some cases for IGs. They cannot get access to one data set that
might provide them and tell them whether applicants for another
entitlement, whether they are providing accurate information to
get that entitlement. And you can cross data sets there. That
might be a really great use of a new database that an IG can
acquire.
But to just start using Twitter, to start using Twitter
might not be the best use of resources of an IG.
Senator Portman. Yes. And I think it is an opportunity but
also a challenge, including, as the Chairman said, just the
inability to have adequate staffing to do your current job,
much less to be able to look through these troves of data.
And there is a lot out there, but how much of it is really
useful is the question.
And then some of it is classified or at least not public,
and so that is a challenge for you guys to get a hold of that.
Any other comments on that?
Mr. Horowitz, you seem like you have a comment.
Mr. Horowitz. Let me just add. We did a report shortly
after I got there on referencing checking, vetting of
applicants at the Department, and the Department was not doing
a very good job of that. Put aside, separately, just the
security clearance and background check. Good old-fashioned
reference checking is something the Department was not doing.
And I am happy to send a copy of the report up to the
Committee because that is something that should be done. There
is really not much that it takes to get references and
followup.
And on the data issue, it is a big issue for us. We look,
for example, at travel card purchases. We have our fraud
detection office and my office looking for anomalies in that
data, seeing if they can get out of there what would otherwise
be subsumed. It may be a very small charge, but if you can find
a couple of small charges----
Senator Portman. It might show a pattern.
Mr. Horowitz [continuing]. That are fraudulent, it might
show the pattern.
And so we try and do that, but it is very hard.
Senator Portman. Well, thank you all very much for being
here.
Senator Tester. With every answer comes another question.
I mean, the truth is you are exactly right; they do need to
do the followup on the background checks. If they do not, we
end up in a very difficult situation.
I would hope that you have the ability--the IGs--to get
people's attention if they are not doing their job so that,
ultimately--well, I have a different perspective. I do not
think there is any tolerance for folks who do not do their job
in this particular area. They should be gone.
And I do not know if you have that ability to make those
recommendations or not.
Mr. Horowitz. We absolutely make the recommendations, and
one of the things that we try and do is followup on our
recommendations. We have hundreds of open recommendations in
the Department in a variety of areas----
Senator Tester. Right.
Mr. Horowitz [continuing]. Not just in this one.
But one of the things that is incumbent upon us is to do a
better job regularly following up on those recommendations and
reporting to the leadership of the agency and to Congress on
what the status of those open recommendations is because
changes--finding the problem is not--is 10 percent of the
issue. Remediating it is the key part, frankly.
Senator Tester. Yes. And along those lines, if we want to
make your job less necessary in the future, we need to do
prevention up front. From my perspective, one of the best ways
to stop waste, fraud and abuse is drop the hammer on the folks
who are doing it.
Any other ideas in prevention that would work?
Ms. Gustafson. I think that there is definitely dropping
the hammer certainly in a lot of these contexts. For example,
again, we do a lot of Federal contracting work, and that is a
fairly small community. When we are able to get good successes
in contractors being debarred, contractors being prosecuted,
people know that, and that message gets out.
I also think that you are right; there is also a need to be
proactive and work with the agency, make sure that it is best
to get the money before it goes out the door----
Senator Tester. Right.
Ms. Gustafson [continuing]. Rather than to try to get it
back. And I do think that that is something that all IGs are
working on and working closely with agencies, to kind of--to
prevent the fraud and the waste before it occurs.
Senator Tester. OK, I have a few other questions that we
are probably going to enter for you guys to respond to at a
later date because this hearing has gone quite a while.
I want to thank you all once again for being here.
Senator Portman, do you have any closing remarks? [Pause.]
We have covered a fair amount of ground here today, and I
think it is important that we cast a light on the challenges of
our oversight workforce and the opportunities we have to
increase efficiency and effectiveness of government. It is all
something we all want to see happen.
As I said at the outset, public trust in the Federal
Government is waning, and we certainly have a lot of work to do
to restore that faith. And we can start by moving forward on
some of the ideas that were put out for us today and support
the efforts to shed light on government and help ensure
taxpayer dollars are being spent responsibly and productively.
I certainly look forward to working with the folks not only
on this Committee and Ranking Member Portman but all of you and
the other folks that work in the different IG offices. I think
it is the only way we will tackle the problems.
The hearing record will remain open for 15 days for any
additional comments or questions.
Once again, I want to thank the panelists.
We are adjourned.
[Whereupon, at 4:09 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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