[Senate Hearing 114-486]
[From the U.S. Government Publishing Office]
S. Hrg. 114-486
WATCHDOGS NEEDED: TOP GOVERNMENT
INVESTIGATOR POSITIONS LEFT UNFILLED FOR YEARS
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HEARING
BEFORE THE
COMMITTEE ON
HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
FIRST SESSION
__________
JUNE 3, 2015
__________
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COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona THOMAS R. CARPER, Delaware
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky JON TESTER, Montana
JAMES LANKFORD, Oklahoma TAMMY BALDWIN, Wisconsin
MICHAEL B. ENZI, Wyoming HEIDI HEITKAMP, North Dakota
KELLY AYOTTE, New Hampshire CORY A. BOOKER, New Jersey
JONI ERNST, Iowa GARY C. PETERS, Michigan
BEN SASSE, Nebraska
Keith B. Ashdown, Staff Director
Christopher R. Hixon, Chief Counsel
Gabrielle D'Adamo Singer, Deputy Chief Counsel for Governmental Affairs
Gabrielle A. Batkin. Minority Staff Director
John P. Kilvington, Minority Deputy Staff Director
Katherine C. Sybenga, Minority Senior Counsel
Deirdre G. Armstrong, Minority Professional Staff Member
Laura W. Kilbride, Chief Clerk
Lauren M. Corcoran, Hearing Clerk
C O N T E N T S
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Opening statements:
Page
Senator Johnson.............................................. 1
Senator Carper............................................... 4
Senator Lankford............................................. 21
Senator Baldwin.............................................. 24
Senator Ernst................................................ 25
Senator Ayotte............................................... 28
Prepared statements:
Senator Johnson.............................................. 37
Senator Carper............................................... 39
WITNESSES
Wednesday, June 3, 2015
Hon. Michael E. Horowitz, Chair, Council of the Inspectors
General on Integrity and Efficiency, and Inspector General,
U.S. Department of Justice..................................... 7
Danielle Brian, Executive Director, Project on Government
Oversight...................................................... 9
Daniel Z. Epstein, Executive Director, Cause of Action........... 12
Alphabetical List of Witnesses
Brian, Danielle:
Testimony.................................................... 9
Prepared statement with attachment........................... 45
Epstein, Daniel Z.:
Testimony.................................................... 12
Prepared statement with attachment........................... 61
Horowitz, Hon. Michael E.:
Testimony.................................................... 7
Prepared statement........................................... 41
APPENDIX
Statements submitted for the Record from:
The Institute of Internal Auditors........................... 107
U.S. Department of Veterans Affairs Office of Inspector
General.................................................... 109
Project on Government Oversight Response to Department of
Veterans Affairs............................................... 114
Response to post-hearing questions submitted by Mr. Horowitz..... 124
WATCHDOGS NEEDED: TOP GOVERNMENT
INVESTIGATOR POSITIONS LEFT UNFILLED FOR YEARS
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WEDNESDAY, JUNE 3, 2015
U.S. Senate,
Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:01 a.m., in
room SD-342, Dirksen Senate Office Building, Hon. Ron Johnson,
Chairman of the Committee, presiding.
Present: Senators Johnson, Lankford, Ayotte, Ernst, Sasse,
Carper, McCaskill, Baldwin, Booker, and Peters.
OPENING STATEMENT OF CHAIRMAN JOHNSON
Chairman Johnson. This hearing will come to order. I ask
unanimous consent to have my written opening statement entered
into the record.\1\ No objection. I will do it when his back is
turned to me. So ordered.
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\1\ The prepared statement of Chairman Johnson appears in the
Appendix on page 37.
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I would like to spend a little bit more time than I
normally do with some opening comments because this issue is
pretty dear to my heart and I think all of our hearts. We
always say the Government Accountability Office (GAO) is our
favorite agency, but certainly the Offices of Inspectors
General (OIG) are our favorite offices within these agencies
and departments, particularly for this oversight Committee. It
is just incredibly important to have permanent Inspectors
General (IG) that are completely independent, that will provide
Congress and the American public transparency, and that
watchdog assignment, that responsibility for departments and
agencies so that we have awareness of what is happening. It is
the only way we are going to be able to improve the efficiency,
the effectiveness, the accountability of government, is to have
that type of transparency.
My own initial involvement with the importance of
Inspectors General really came after the Cartegena incident.
Now, I come from the private sector. I have had independent
financial auditors. I have had surveillance auditors with the
International Organization for Standardization (ISO)
certification. These are some independent outside groups that
provide that independent oversight. This is about as good as we
can do within government, having, obviously government
employees, but we need that independence and transparency.
After the Cartegena hearing where we had the Director of
the Secret Service, Mark Sullivan, testifying before us, it was
determined that we would have an inspection, an investigation
conducted by the Inspector General's office.
My staff went down in a secure briefing to read the initial
report. A couple months later, when that report was actually
issued, we realized that there were parts of the report that
were originally included in that that had been taken out of the
report inappropriately, which led to a continuing investigation
on the part of our Subcommittee to find out that there were
some other problems with Charles Edwards and we issued a report
supported by both sides. A couple days before we had a hearing
with Mr. Charles Edwards, he resigned and went on to some other
duty.
The result of the lack of transparency, the lack of what I
think would be reports with integrity based on what was
happening within the Secret Service, the cultural problems with
the Secret Service, the net result of that is we have not
reformed the Secret Service. We are still continuing to have
credibility issues within an agency that I think is incredibly
important to have the utmost credibility. So that is one
circumstance that was my first time certainly being made aware
of how incredibly important it is to have a completely
independent, completely transparent Office of Inspector
General. And, of course, Charles Edwards, the problem with him
is he was an Acting IG, and he was openly vying for the
permanent IG position, so you have a natural conflict of
interest right there, which I think was at the heart of that
problem.
Fast forward. We saw the revelations in Arizona in terms of
the Department of Veterans Affairs (VA) health care system,
people dying waiting to be given care. Now, that information
was broken through news reports, not revealed to the public
where it should have been revealed through the Office of
Inspector General of the VA.
In our own State, Senator Baldwin's State and mine, further
news reports revealed early this year that there are similar
problems in the Tomah VA Health Care Center where, because of
overprescription of opiate drugs, veterans died. And, in
particular, the day I learned about it, early in January, on
January 12 Candace Delis took her father, Thomas Baer, into the
Tomah VA facility. He was a suffering stroke victim. He waited
somewhere between 2 and 3 hours, probably suffered a couple
strokes. In the end, he was transported to Gundersen Lutheran
La Crosse. He died a couple days later. He basically died of
neglect.
Now, had the Office of Inspector General been transparent,
had the office not administratively closed a report that it had
been working on a couple years, had that report been made
public, what Candace Delis told me on the phone a few days
after I learned of the incident, she said, ``Senator, had I
known that there were problems with the Tomah VA health care
system, I never would have taken my father to that facility.''
Now, what is really sad is Candace Delis and Thomas Baer
lived in Marshfield, Wisconsin. A world-class health care
facility resides in Marshfield, Wisconsin. Thomas Baer would
have been alive had we had the type of transparency, the type
of independence in the Office of Inspector General within the
VA system. I truly believe that.
So these issues are not just theoretical. This is not just
about, good government. People's lives can be in the balance
here. So these are incredibly important issues.
The purpose of this hearing is really to, I think, first
convey how important that independent and transparent function
is of the Office of Inspector General; and then, second, to
find out why this White House, this Administration, who claimed
to be and wanted to be the most transparent Administration in
history, has taken so long to fill so many positions of
Inspectors General. Here are just a couple of examples.
The State Department went 1,701 days without a permanent
Inspector General. That is more than 4\1/2\ years before that
position was finally filled.
The Interior Department is right now holding the current
record: 2,291 days, 6\1/4\ years since we have had a permanent
Inspector General within the Department of Interior (DOI).
The Department of Labor (DOL) was pretty bad. Labor had
1,555 days that position went vacant. That is more than 4\1/4\
years.
Now, let us just compare past Administrations.
The Reagan Administration, the average days of vacancy was
about 224 days.
Under the first President Bush, it was about 337 days.
Under Bill Clinton, 453 days average vacancy.
Under the second President Bush, 280 days.
Under President Obama, the average vacancy has been 613
days, 1\2/3\ years these positions have gone vacant, have not
been filled. That is a problem.
Now, again, we have a good panel here to describe and
fulfill the first purpose of this hearing, which is describe
how important it is for the Office of Inspector General to be
independent and transparent.
Unfortunately, we do not have the White House's version of
events, and let me just read a timeline in terms of our attempt
to get the White House to give this Committee the information.
On May 14, we first reached out to the White House about
this hearing and invited Valerie Green, who is the Director of
the Office of Presidential Personnel. That would be the person
within the White House that could give us that answer: Why have
these positions gone unfilled for so long?
On May 19, we began discussions with the White House
Counsel's Office after the White House said it would not send
Ms. Green.
On May 22, we formally invited Ms. Green and offered the
White House to send a designee from her office if it could not
send Ms. Green.
On May 27, the White House rejected the invitation and said
it would only send Beth Cobert, whom we all like--I have a
great deal of respect for Beth Cobert. We all do here on the
Committee. But she is Deputy Director for Management at the
Office of Management and Budget (OMB). She is not involved in
these decisions in terms of these nominations. She is not in
that Office of Presidential Personnel. She obviously has some
tie-in with the Council of Inspectors General on Integrity and
Efficiency (CIGIE), but she would not be in the position to
answer the questions that this Committee is trying to
ascertain.
On May 28, we again reiterated to the White House that Ms.
Cobert is not an appropriate witness because she plays no part
in the White House's nomination process. We also highlighted a
2012 House hearing in which an OMB witness testified on this
matter, and they could not answer the members' questions about
the nomination process because they ``have no role in that.''
On May 28, we invited the former director of the office,
Jonathan McBride, who is now working in the private sector at
BlackRock. The White House told BlackRock and Mr. McBride that
it does not want Mr. McBride to testify and asked him not to
speak with us.
On June 4, the Committee offered to accept a non-public
briefing with the Office of Presidential Personnel in lieu of
testimony today. Yesterday, Mr. McBride refused to testify and
directed the Committee to speak to the White House. Also
yesterday, the White House said it would not provide Members
with a briefing, is not sending Ms. Green or anyone else from
that office, and is refusing to allow the former director of
that office to testify.
This is very disappointing to this Committee. I think this
is our responsibility to conduct this oversight, and we are not
going to get the information from the White House, which is the
second purpose of this hearing. So I think it is unfortunate,
but I wanted to put that on the record.
With that, I will turn it over to our Ranking Member,
Senator Carper.
OPENING STATEMENT OF SENATOR CARPER
Senator Carper. Good morning, everyone. Thank you for
joining us today. We look forward to this important hearing.
I take second place to no one with an appreciation for the
important role that Inspectors General play in our government.
In order for us to be effective in ferreting out waste and
fraud in the Federal Government--there is still too much of
it--this Committee needs to partner with our colleagues in the
Senate, we need to partner with the Administration, the
Executive Branch, we need to partner with GAO, we need to
partner with the Inspectors General, we need to partner with
all kinds of entities, nonprofit entities that are outside of
the Federal Government, in order to find out how do we get
better results for less money.
Last Congress, if I am not mistaken, I sent a letter, along
with Senator Tom Coburn, who was then our Ranking Member, to
the Administration saying there are too many vacant positions,
vacant for too long, of Inspectors General throughout our
government, do something about it.
I led a second effort, joined in this case by our Chairman,
and joined I think by everybody on this Committee, as was the
case 2 or 3 years ago, writing to the same President with the
same message: There are too many vacancies for too long a
period of time for Inspectors General, do something about it.
Well, I think in this case we have actually done something
about it. Am I happy, am I satisfied with the progress that has
been made? Not entirely. But let us keep this in mind: There
are 72 Inspector General positions throughout our government,
33 of them require confirmation. There are today, I believe,
seven vacancies in these Senate-confirmed positions. The
Administration has put forth nominees for three of these seven
positions, which means there are still four for which we need
nominees. And my own view is that the way to get stuff done is
not just to send letters to the President, to make phone calls
not just to the President, but the Chief of Staff, the other
folks who are advising the President, and to be unrelenting in
doing this.
The other thing, we have an obligation ourselves--we are
not entirely pure as a Committee. We have seen situations where
Members of this Committee literally have held up nominations
for Inspectors General, not just for weeks, not just for
months, but for even longer periods of time. So this is the pot
to some extent calling the kettle black. But this
Administration needs to do a better job. I believe that and I
am sure every Member of this Committee believes that.
The idea of having a vacancy for the IG at the Department
of Veterans Affairs for a year and a half, unacceptable. The
idea of having a vacancy for the IG at the Department of the
Interior for over 5 years, really unacceptable. And I am a
thorn in the side of my friends in this Administration in
making sure that we address these vacancies, and I am confident
that we will, because I am not quitting. And I know the rest of
you will not either.
Let me just say this: Some of my colleagues know this is a
shared responsibility, and our responsibilities include not
just hounding the Administration to get us good folks, nominees
for these positions, but when they do, for us to expedite
processing the nominations. I have seen situations where we
held up the thing for so long that somebody nominated for an IG
position, I think living in California, they had looked and
seen how long the process took to get the previous nominee who
finally withdrew, and that nominee in California said, ``I am
not going to move my family to Washington, D.C., uproot my
family and go through that kind of vetting process to see if I
am going to get confirmed.'' And they just backed out. So there
is a shared responsibility here.
A guy named Richard Skinner was the first Senate-confirmed
Inspector General of the Department of Homeland Security (DHS).
He explained the special authority that comes with Senate
confirmation at a hearing that we held in this Committee about
2 years ago. This is what he said, and this is a quote:
``With having acting people in place, what you are doing is
running in place. . . . [Y]ou are not taking those risks
necessary as a confirmed IG would to provide oversight . . .
that is absolutely critical to the success of any program.''
I think that is a powerful statement of how Senate
confirmation enhances independence.
We look forward to hearing from our witnesses today as we
work together to find ways to not just reduce the number of
vacancies in these key positions, but also to ensure they are
filled with highly qualified candidates who will help us root
out problems and save money for our taxpayers.
Now, on the issue of asking the advisers to the President
to come and testify before Senate committees, this is not a new
subject. I came here, elected at the same time that George W.
Bush was elected President, and a number of times in his
Administration, we sought to compel the President's advisers to
come and testify before Congressional committees. They chose
not to do that. And the reason why, one of the reasons why is
the view that if someone is an adviser--I am not talking about
a Cabinet Secretary or a confirmed position, but somebody who
is an adviser to the President, Presidents want that person to
give their honest, unvarnished advice. This is what we heard
before, from the previous Administration, and we heard from
this one as well. If the person is expected to give the
President advice on a particular issue and is going to be
compelled to come here and testify, will that person be as
inclined to give actually the frank, honest advice that a
President needs? And the last Administration said, ``We do not
think so,'' and frankly, neither does this one.
Now, who did the President offer to send, who did the
Administration offer to send? As the Chairman has said, the
person he offered to send was Beth Cobert, whom we know and
respect a great deal. She is one of the top people at OMB. And
the reason why they offered to send her is that she serves as
Executive Chair of the Council of Inspectors General on
Integrity and Efficiency. And not only that, she is somebody
the President listens to, and she talks to him on a fairly
regular basis. And she, as much as anybody, can deliver the
message directly to him, directly to the President's top aides,
his Chief of Staff and other people, on a consistent basis, and
say, ``These vacancies have been in existence for too long. We
need to do something about it.'' That is why she would have
been a good witness.
So on that happy note, I am happy we are all here.
Everybody agrees we need IGs, we need good ones, and we need
them to be going to work today and every day. And let us just
make sure that we all pull together in the same direction, and
we will get that done.
Thank you.
Chairman Johnson. Thank you, Senator Carper.
I do want to point out that I have certainly made a
commitment to move nominations for this Administration as
quickly as possible. I have already got a record with Russ
Deyo. I worked pretty long and hard working the phones and
working my colleagues to make sure we could release those
holds. And we do have one nomination for an IG before this
Committee, Carol Ochoa for the General Services Administration
(GSA) IG position. She was nominated on March 11. This
Committee received her required documents on May 11. We
conducted a staff interview on May 20th----
Senator Carper. Mr. Chairman, can I interrupt for just a
second?
Chairman Johnson. Sure.
Senator Carper. Finance has a markup right now. They are
working on one of my bills that I have been working on. I need
to run out for a quorum. I will be right back.
Chairman Johnson. Dismissed.
Senator Carper. I apologize.
Chairman Johnson. But, again, we have been trying to work
through this nomination as quickly as possible. Again, we
received her required documentation May 11. We did the staff
interview on May 20. We have scheduled her confirmation hearing
for June 17, and we will do everything possible to get her
confirmed as quickly as possible. So we certainly have that
commitment.
Again, I want to welcome the witnesses. Thank you for your
thoughtful testimony. I have read it, and I am looking forward
to your testimony and answers to our questions. It is the
tradition of this Committee to swear in witnesses, so if you
will all rise and raise your right hand. Do you swear the
testimony you will give before this Committee will be the
truth, the whole truth, and nothing but the truth, so help you,
God?
Mr. Horowitz. I do.
Ms. Brian. I do.
Mr. Epstein. I do.
Chairman Johnson. Thank you. Please be seated.
Our first witness is Michael Horowitz. Inspector General
Horowitz is the Inspector General for the Department of Justice
(DOJ) and chairs the Council of Inspectors General on Integrity
and Efficiency. We refer to it as ``CIGIE'' because that is a
lot easier to say. Prior to joining the Inspector General's
Office, Mr. Horowitz had a decorated career as a Federal
prosecutor in the Criminal Division of the Department of
Justice. Mr. Horowitz.
TESTIMONY OF THE HONORABLE MICHAEL E. HOROWITZ,\1\ CHAIR,
COUNCIL OF THE INSPECTORS GENERAL ON INTEGRITY AND EFFICIENCY,
AND INSPECTOR GENERAL, U.S. DEPARTMENT OF JUSTICE
Mr. Horowitz. Thank you, Mr. Chairman, Ranking Member
Carper, and Members of the Committee. Thank you for inviting me
to testify today. This Committee has consistently provided
strong bipartisan support for the work of Inspectors General,
and I want to thank you for that support.
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\1\ The prepared statement of Mr. Horowitz appears in the Appendix
on page 41.
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In January, I was sworn in as the Chair of the Council of
the Inspectors General, and one of our most important missions
there is to provide, as the IG Act indicates and requires us to
do, to recommend individuals for appointment as Inspectors
General. And since the creation of the Council of Inspectors
General in 2009, we have recommended over 100 individuals for
Inspector General positions, and many of the candidates are now
serving as Inspectors General. Indeed, I am one of those
candidates that was recommended by the Council.
To fulfill their responsibility, Inspectors General must be
scrupulously independent, thorough, impartial, fair, and
accountable to the public. Being able to make difficult and
unpopular findings is part of the job description. Finding IG
candidates who can fulfill all of these objectives can be a
challenge, but it is critical to the IG selection process.
In seeking to fulfill our responsibility to find candidates
to recommend for IG vacancies, the Council of IGs has
established an Inspector General Recommendation Panel. We seek
to recruit candidates from both inside and outside the
Inspector General community to apply for IG vacancies. Once
received, applicants are referred to the panel for review. The
panel looks for certain core qualifications of applicants. And
since the type of experience that is needed can cut across
industries and sectors, the panel considers applicants from
various professional backgrounds, including from the IG
community, Federal, State, and local government agencies, and
the private sector. After review, the panel determines which
applicants to recommend for consideration.
The Council of IGs, however, is not the only source of IG
candidates. For example, interested individuals can contact the
appointing authorities directly. Moreover, the appointing
authorities are not required to accept or even act on the
recommendations that we send them.
Far too often, the process for selection and appointment of
IG candidates takes too long. As of today, there are eight IG
positions that remain vacant. As of the end of this month, all
of these positions, with the exception of the Central
Intelligence Agency (CIA) Inspector General position, will have
been vacant for over one year.
At present, there are nominees pending for three of the
positions: the U.S. Agency for International Development
(USAID), the Federal Deposit Insurance Corporation (FDIC), and
the GSA. I am very familiar with two of those nominees for FDIC
IG and GSA IG because both of them currently work with me in
the Department of Justice Office of the Inspector General.
Their dedication and experience will make them outstanding
Inspectors General, and I am hopeful they will join the
Inspector General community shortly.
On behalf of the Council of IGs, I would encourage swift
action with respect to selecting IG candidates for the
remaining IG positions and confirming them promptly so that we
can have all of the positions filled.
As this Committee has recognized previously, during the
period of an IG vacancy, Acting Inspectors General and career
staff can carry on the work of their offices, and they do it
with the utmost of professionalism. Indeed, my office had an
Acting Inspector General for 15 months prior to my
confirmation, and she served with great distinction. However, a
sustained absence of permanent leadership is not healthy for
any office, particularly one entrusted with the important and
challenging mission of an OIG. Moreover, no matter how able or
experienced an Acting Inspector General may be, a permanent IG
has the ability to exercise more authority in setting policies
and procedures and, by virtue of the authority provided for in
the IG Act, inevitably will be seen as having greater
independence. As such, a timely process for addressing vacant
IG positions is crucial.
I can speak from my personal experience about the extended
period of time it can take to identify and confirm an IG
candidate. My predecessor, Glenn Fine, announced in November
2010 that he would be leaving the position in January 2011. I
was not nominated until July 31, 2011, and I was not confirmed
until March 29, 2012. It was approximately one year from the
time that I was contacted about the Inspector General position
until the time that I was actually confirmed. I am particularly
concerned, as the Chairman just mentioned a similar concern,
that such a lengthy process could discourage strong candidates
from seeking IG positions.
The Council of IGs will continue to encourage talented
senior staff in the IG community to apply for vacant IG
positions and to expand our recruitment efforts to find
qualified candidates from outside the IG community. In
addition, we will continue to seek to engage with the Office of
Presidential Personnel to try to push for the prompt selection
to fill establishment IG vacancies. And we will work with the
leaders of the designated Federal entities that have IG
positions to encourage them to seek input from the Council of
IGs when an IG vacancy occurs. We will also continue to work
with the Committee and its staff on these issues.
The Council of IGs is committed to reviewing its practices
and improving our contributions to the process to ensure that
IG vacancies are promptly filled with outstanding candidates.
Thank you, and I would be pleased to answer any questions
the Committee may have.
Chairman Johnson. Thank you, Mr. Horowitz.
Our next witness is Danielle Brian. Ms. Brian has been the
Executive Director of the Project on Government Oversight
(POGO), since 1993, leading the project to investigate fraud,
waste, and abuse in the Federal Government and achieving a more
accountable and ethical government. Ms. Brian.
TESTIMONY OF DANIELLE BRIAN,\1\ EXECUTIVE DIRECTOR, PROJECT ON
GOVERNMENT OVERSIGHT
Ms. Brian. Thank you so much, Chairman Johnson--I am sorry
Ranking Member Carper is not here at the moment--and Members of
the Committee. Thank you for inviting me to testify today and
for this Committee's longstanding and ongoing oversight of the
IG system.
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\1\ The prepared statement of Ms. Brian appears in the Appendix on
page 45.
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POGO has worked for years to study and improve the IG
system. We are seeing in the news this week additional examples
of why good oversight by IGs is important. For example, it was
the DHS IG that is now a permanent IG who ran the security
tests bringing banned items into airports and found the
Transportation Security Administration (TSA) failed 67 out of
70 tests, or 95 percent. This resulted in immediate reforms,
including the reassignment of the TSA's Acting Administrator.
Unfortunately, not all IG shops are doing such important
work. Among the most pervasive threats to IG independence and
effectiveness are the longstanding vacancies that have
languished at IG offices throughout the Federal Government.
Generally speaking, Acting IGs have several disadvantages over
their permanent counterparts. As Mr. Horowitz was highlighting,
one is that Acting IGs do not enjoy the same level of
credibility because they have not gone through the vetting
process. Two, Acting IGs are temporary by nature and have an
incentive to curry favor with the agency head as a way of
auditioning for the permanent appointment. And, three, Acting
IGs are loath to address the most important and, at times,
embarrassing problems that confront them. As a result, they
become more lapdog than watchdog for the agency.
Several years ago, POGO created a special Web page--Where
Are All the Watchdogs?--to keep track of ongoing vacancies in
the IG system. IG vacancies under President Obama have lasted
an average of 613 days, as the Chairman mentioned, nearly 2
years. The vast majority of that time has been spent waiting
for the selection of a nominee by the President.
IG positions can become vacant for a variety of reasons and
in some instances might even be beneficial. For instance, POGO
and other groups called on President Obama to remove Senate-
confirmed Commerce IG Todd Zinser after a House probe found
that Zinser and his deputies retaliated against whistleblowers
and that he had hidden a previous case of whistleblower
retaliation during his confirmation process.
Whatever the reasons may be for a vacancy to begin or
continue, the following examples show what can happen when an
IG office languishes for too long under acting leadership. One
OIG staffer told POGO, ``The situation is akin to a plant that
is left unwatered for years.''
The Department of Veterans Affairs has now gone, as was
mentioned, a year and a half without a permanent IG, and
President Obama still has not offered a nominee. If there were
a Federal agency more in crisis in my years of working in
Washington than the VA, I cannot think of one.
In the meantime, the IG's office has been led in an acting
capacity by Richard Griffin. Griffin's independence and
interactions with Department leaders have repeatedly come under
scrutiny during his tenure as Acting IG, including POGO's own
run-ins with that office.
Last year, after Griffin conferred with one of the VA's top
officials, the IG's office added language to a draft report
that undermined a whistleblower's claims about veterans' deaths
and falsified wait lists, according to an e-mail released by
the House Veterans' Affairs Committee.
In addition, Chairman Johnson, you and other Members of
this Committee have rightfully raised your own concerns about
the independence of the VA IG's office and the need for
permanent leadership. Incredibly, that office continues to
defend its decision to withhold its findings from the public,
stating that its reports were ``technically available if the
public or Members of Congress submitted a Freedom of
Information Act (FOIA) request.'' This posture--which is,
unfortunately, all too common among both acting and permanent
IGs--creates the strong appearance that the VA's watchdog is
shielding the Department from Congressional and public
scrutiny.
At the Department of Homeland Security IG's office, the
tenure of Charles Edwards as Acting IG serves as a shining
example of all that can go wrong when IG offices are headed for
too long a time under acting leadership, as the Chairman
mentioned.
My written statement includes additional case studies of
longstanding vacancies that threaten the independence of IG
offices. At the Department of Defense, for example, the impact
of then-Acting IG Lynne Halbrooks' efforts to shield her agency
from bad press are still being felt. Just yesterday, McClatchy
papers reported that a Federal judge is investigating
allegations that the Pentagon IG's office under Halbrooks'
watch may have improperly destroyed exculpatory documents
during a leak investigation of the National Security Agency
(NSA) whistleblower Thomas Drake.
At the State Department, there was no permanent IG for the
duration of Secretary Clinton's tenure. This raises the obvious
question as to whether someone at the agency would have blown
the whistle on the Secretary's refusal to use government e-
mails had there been a real watchdog in place.
In the early days of the Obama Administration, I was able
to speak with senior officials in the White House to propose
potential IG nominees. The last time I reached out on that
subject, it appeared I was dealing with White House interns. My
personal experience seems to reflect this Administration's
growing ambivalence toward IGs in general. We are pleased to
see that the number of vacancies at Federal IG offices has
dropped in recent years, but seven vacancies for Presidentially
appointed IG positions is still too many, especially when two
of those vacancies have languished for more than 1,000 days.
In addition to filling the vacancies with strong permanent
IGs, POGO has issued other recommendations to ensure that both
acting and permanent IG watchdogs do not become subservient
lapdogs. One of our biggest concerns is that the IG Act induces
many OIGs to spend a significant amount of time chasing what we
called ``small-window projects'' in order to boost their
offices' metrics in semiannual reports to Congress. POGO has
started to explore how to revamp these ineffectual reporting
requirements so that IG reports are more meaningful and
reflective of the information that Congress and agencies
actually need.
I would also quickly warn you about the current move to
shift the responsibility of overseeing Afghanistan
reconstruction spending from Special Inspector General for
Afghanistan Reconstruction (SIGAR) John Sopko over to the
Department of Defense (DOD) IG. Remember the problems you have
been having with the VA IG requiring the public and Congress to
file a FOIA request to get reports? The DOD IG is far worse.
They mark their reports ``For Official Use Only'' as a matter
of course. If you want to learn how you are spending money in
Afghanistan, I would strongly encourage you to keep the SIGAR
shop open.
Thank you very much for inviting me to testify today. We
look forward to working with the Committee to strengthen IG
independence and to ensure that these essential offices
function as aggressive watchdogs.
Chairman Johnson. Thank you, Ms. Brian.
Our next witness is Daniel Epstein. Mr. Epstein is the
Executive Director of Cause of Action, a government oversight
group that works to root out waste and fraud in Federal
agencies, including working to increase transparency and
accountability. Mr. Epstein.
TESTIMONY OF DANIEL Z. EPSTEIN,\1\ EXECUTIVE DIRECTOR, CAUSE OF
ACTION
Mr. Epstein. Good morning, Chairman Johnson and Members of
the Committee.
---------------------------------------------------------------------------
\1\ The prepared statement of Mr. Epstein appears in the Appendix
on page 61.
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Since its founding, Cause of Action has worked productively
with IGs by sharing research that enhances their investigative
efforts.
In April 2012, agents from the Department of Energy (DOE)
Inspector General Office informed my organization that they
opened up an investigation into the misuse of funds by the
International Humanities Center.
In May 2014, the U.S. Department of Housing and Urban
Development (HUD) OIG confirmed that an investigation was
opened into whether HUD violated appropriations laws in
promoting the Affordable Care Act.
Most recently, the Health and Human Services (HHS) Office
of Inspector General began an ``open and ongoing
investigation'' into issues concerning lobbying with the
Affordable Care Act funds.
Sitting in Washington, the President's decision not to fill
certain IG vacancies may seem political. Consider the following
agency issues during the current Administration that might have
been embarrassing to the President.
Earlier this year, it was revealed that former Secretary of
State Hillary Clinton used a private e-mail server to conduct
agency business.
Last month, an audit revealed that civilian and military
officials used Defense Department credit cards for gambling and
escort services in Las Vegas and Atlantic City.
The General Services Administration had its own scandal
centered in Las Vegas.
In 2013, this Committee investigated Acting DHS IG Charles
Edwards, and the Department of Transportation (DOT) Inspector
General at the direction of CIGIE later found him to have
engaged in misconduct.
The Department of Veterans Affairs has been plagued by
scandal regarding medical care of veterans. The former Acting
USAID IG removed findings from reports sent to this Committee.
Fannie Mae, overseen by the Federal Housing Finance Agency,
suffered from financial conflicts of interest amongst its
executives.
The Federal Deposit Insurance Corporate is currently in the
crosshairs of Congress for a controversial program known as
``Operation Choke Point.'' And the Department of Labor was
found by this Committee to have engaged in massive amounts of
wasteful spending.
The President did not submit nominations to the Senate for
permanent IGs at any of these agencies--GSA, USAID, FDIC, FHFA,
DHS, Defense, State, and Labor--until after he was elected to
his second term. The President has still not nominated a
permanent IG for Veterans Affairs or the Interior Department.
Permanent IGs might have solved some or all of the
systematic agency problems that led to these scandals, but
investigating, publicizing, and remediating waste, fraud, and
abuse by Federal agencies empowers Congress and the public and
forces the President to engage in uncomfortable decisions when
an OIG uncovers misconduct amongst Presidential appointees;
that is, the President is ultimately accountable for removing
his appointees.
This point can be further illustrated by highlighting an
investigation conducted by this Committee. In 2013, HSGAC's
Subcommittee on Financial and Contracting Oversight conducted
an investigation into then-Acting IG Charles Edwards. Mr.
Edwards resigned just days before he was to testify before this
Committee. However, the resignation from the IG's office did
not mean his separation from government employment. After
taking administrative leave and resigning from the OIG, Charles
Edwards was granted a transfer to DHS' Office of Science and
Technology Directorate. However, the IG Act states that when an
Inspector General is removed from office or is transferred to
another position or location within an establishment, the
President shall communicate in writing the reasons for any such
removal or transfer to both Houses of Congress not later than
30 days before the removal or transfer.
The legislative history behind the 2008 IG Act amendments,
which this Committee provided, says that the President is
required to notify Congress for any removal or transfer to
ensure that the IG was not removed or transferred for political
reasons. It has never been made public whether the President
ever communicated the reasons for Mr. Edwards' transfer, but it
is reasonable to infer no such communication by the President
occurred.
To be charitable, while it could be the case that the
President may have ignored the statutory requirement to inform
Congress before an IG was transferred, the President likely
obtained legal advice that an Acting IG is not covered by this
statutory requirement. But the fact that the President may have
received such legal advice is precisely why the Inspector
General vacancies should not remain unfilled, because it
delegates too much discretion to the Executive to determine the
scope of Acting IG authority.
The problems associated with Acting IGs extends to the
recent revelations at the State Department that former
Secretary of State Hillary Clinton exclusively used a private
e-mail system for official government business. During Mrs.
Clinton's entire tenure, the State Department Acting IG was
Harold Geisel, an ambassador under former President Bill
Clinton. As a career member of the Foreign Service, Mr. Geisel
was prohibited by statute from becoming a permanent IG. In
testimony before the House Committee on Foreign Affairs, the
GAO criticized the appointment of Acting IGs at the State
Department from career Foreign Service officers because of
their inherent lack of independence and noted in particular
that Mr. Geisel had 25 years in senior State Department
positions.
During Mrs. Clinton's tenure, the White House never made
any attempt to appoint a permanent IG, and Mr. Geisel served as
the Acting IG for 5 years. In 2013, both the Chairman and
Ranking Member of the House Committee on Foreign Affairs signed
a joint letter sent to newly appointed Secretary of State John
Kerry as well as another letter to President Obama, noting that
the ``gap of more than 1,840 days is the longest vacancy of any
of the 73 Inspector General positions across the Federal
Government.''
As part of my written testimony submitted to this
Committee, my organization is releasing previously undisclosed
records we obtained through FOIA requests submitted to the
State Department OIG and the National Archives and Records
Administration (NARA) for information pertaining to Secretary
Clinton's e-mails. The OIG claimed that there were no
responsive documents from Mr. Geisel's time. NARA, however,
confirmed that responsive OIG records existed, though it
claimed exemptions over such documents.
Other records produced by NARA show that as early as 2012,
NARA officials were concerned that Mrs. Clinton might alienate
Federal records from government control. Despite this (and the
obligation imposed on NARA by the Federal Records Act), there
is no indication that NARA ever notified the Department of
Justice or Congress about the possible alienation or
destruction of Federal records or sought to use the law
enforcement powers to retrieve Secretary Clinton's records. To
the contrary, NARA publicly commended the State Department for
its record management practices.
Given NARA's 2012 concerns and its opportunities to cure
Hillary Clinton's alienation of records, it either was aware of
the State Department's intentional failure to preserve Mrs.
Clinton's e-mails or was extremely negligent in its efforts to
monitor senior officials' e-mails. It is an unfortunate
coincidence that Hillary Clinton's e-mail abuses occurred when
the State Department and the National Archives both lacked
permanent IGs.
Many of the scandals I have discussed would have been
foreseeably avoided or timely remedied had these agencies had
permanent independent IGs. Unlike other Federal officials
appointed by the President, IGs partner with Congressional
oversight committees and public interest organizations in order
to oversee their resident Federal agencies. This creates unique
incentives for IGs to be politically accountable to Congress in
ways that other Presidential appointees may not be, which
serves a democratic purpose rendered impossible when no Senate
confirmation takes place or when the Acting IG's legitimacy is
challenged, as is often the case.
I thank the Committee for the opportunity to testify on
these important issues.
Chairman Johnson. Thank you, Mr. Epstein.
I would like to start with you, as long as you raised the
issue about the FOIA request through NARA and the Office of
Inspector General for the State Department. You say that with
your FOIA request you found out that NARA said there were
responsive documents that were not supplied by the State
Department to your FOIA request?
Mr. Epstein. Yes, that is correct. Actually, it is one of
the exhibits that I submitted with the written testimony. We
actually FOIA'd for very similar things to the State Department
OIG and to NARA, which was quite simply we wanted any records
and communications about their investigations into Hillary
Clinton's e-mail use. The time period was from January 2009 to
the present. The current OIG responded that there were no
responsive records. We have a document from NARA that says
there is a communication with the State Department OIG, but
they withheld it under an exemption known as B-5, which is
deliberative process.
Chairman Johnson. So you know there were responsive
documents, but you have not gotten those responsive documents.
Mr. Epstein. Yes, the likelihood is--we have filed an
appeal. We would likely have to litigate that question, and I
can tell you from the perspective of good government groups,
litigation usually does not prove fruitful for getting
transparency. It is a last resort type of thing.
Chairman Johnson. OK. Well, again, thank you for your work
on that, and this Committee will certainly followup on that.
Mr. Horowitz, CIGIE has since 2009 recommended about 114
potential IGs for those vacancies, correct?
Mr. Horowitz. That is correct.
Chairman Johnson. Do you know what happens to those?
Mr. Horowitz. Once we make a recommendation, we do not know
what the process is thereafter.
Chairman Johnson. Do you know how many of those 114
potential nominees have actually been selected by the
Administration and appointed?
Mr. Horowitz. As I sit here, I do not know the number off
the top of my head.
Chairman Johnson. But the bottom line is that certainly
CIGIE believes there are a lot of potentially qualified
Inspectors General for this Administration to appoint.
Mr. Horowitz. Right, that is correct. And it has certainly
been far less than 100 that have been selected, so there are
still many candidates available.
Chairman Johnson. Now, I believe the maximum number of days
that somebody can serve as an Acting IG is 210 days, correct?
Mr. Horowitz. That is my understanding.
Chairman Johnson. How many Acting IGs right now have
exceeded that?
Mr. Horowitz. Well, as I mentioned, seven of the eight
vacancies exceed one year--or will exceed one year. That is
certainly more than 210 days.
Chairman Johnson. So how does the Administration get around
that statutory requirement?
Mr. Horowitz. Well, what has happened is the Acting IGs,
which are often the Deputy Inspectors General, simply fall back
to be the Deputy Inspector General, and there is no Acting and
there is no confirmed IG.
Chairman Johnson. So it is really form over substance. They
all of a sudden change your title from Acting IG and they
become a Deputy IG again, and they serve as an Acting IG.
Mr. Horowitz. Someone needs to make some decisions within
the office, so that is what ends up happening.
Chairman Johnson. That is certainly one of the areas that
we need to find some reform on. There has to be some
enforcement mechanism for that statutory requirement. Is that
basically your understanding?
Mr. Horowitz. Somebody needs to make some decisions with
regard to that. Certainly the best way to do it is to get
nominees pending and confirmed.
Chairman Johnson. OK. I have a lot of questions. Hopefully
we will have time for a second round.
Senator Carper. You are the Chairman.
Chairman Johnson. I know. [Laughter.]
We have a lot of people--I am in charge.
Ms. Brian, in being briefed for this hearing, I did find
out something rather disturbing, that the office of POGO had
been ransacked, broken into is probably the best--can you
describe what happened there?
Ms. Brian. Yes, sir. It was a few months ago when staff
came to POGO for work that morning and found that one of the
filing cabinets had clearly been tried to be jimmied open, and
at that time we had not had quite the physical security that we
now have established in our offices. We called the police for
them to investigate, and we are in sort of a typical Washington
office building where we are not the only office in that
building, and none of the other offices in that building had
been burgled, nor had there been anything else in town,
according to the police, in that particular area. And so the
police concluded that it was because of the kind of work that
we do, that it was an information gathering--there were also
some desks that clearly materials had been moved around on the
desks. So it was clearly someone who was trying to find
something that was in our office.
Chairman Johnson. Was there any information missing that
you are aware of?
Ms. Brian. It is one of those things what we do not know.
So it was not clear to us what was taken, if anything, or if it
was just photographs that were taken, for example, of our
desks. We were able to establish that our servers had not been
violated, but certainly because of that we have significantly
ramped up physical security and cybersecurity for our office.
Chairman Johnson. In your testimony you talked about Acting
IGs auditioning for the permanent IG slot. That is certainly
what we saw as a real problem with Charles Edwards. Can you
just describe what happens there, the type of department or
agency capture of that Acting IG and how damaging that is to
independence and transparency?
Ms. Brian. Yes, well, I certainly have been actually
lobbied by Acting IGs specifically asking for our support in
their efforts to become permanent IGs, so I have witnessed it
firsthand. And what happened, of course, because IGs are dual-
hatted, they both report to the Congress but also to the head
of an agency. And because the head of any IG's agency has
significant say in who is the appointee to be the IG, what we
see is that those Acting IGs over and over again try to curry
favor with the head of that agency in order to get that
appointment. And what that means is making sure that they are
not only not doing hard-hitting, independent work while they
are in charge of the Inspector General's office, but often we
are also finding that they are deliberately trying to cover up
bad news that should be revealed, as you mentioned you saw with
the VA IG.
Chairman Johnson. So, in other words, they may decide not
to pursue a particular investigation; they may in a report
doctor or certainly not have as hard-hitting a report, maybe
remove things at the request of the different agencies, which
is what we saw with Charles Edwards. Is that the type of
specific activity you are talking about?
Ms. Brian. Oh, yes. I can give you another specific example
with the Department of Defense IG where there was actually
quite an extraordinary investigation where at the time CIA
Director Leon Panetta had improperly released information about
the identities of the people involved in the ``Zero Dark
Thirty'' raid to film makers, and he had then moved over to
become the Secretary of Defense. The then-Acting IG for DOD was
responsible for the investigation into the allegation of that
release of information and what happened.
We were leaked a draft IG report that had been sitting in
the DOD IG for over a year that identified the fact that
Secretary Panetta as well as other senior staff had, in fact,
released highly classified information, and that report was
being squelched. So we released it, and within a month that
Acting Pentagon IG released a scrubbed version of that report
where there was no mention of Mr. Panetta. And he was, of
course, someone who would have been helpful in Ms. Halbrooks'
getting the permanent position had she gotten what she was
working toward.
Chairman Johnson. OK. Well, thank you for your work.
Senator Carper.
Senator Carper. Thanks, Mr. Chairman. I apologize for
coming and going. I am going to be doing it here again in just
a minute.
One of the issues that our Committee has worked on for
years, Dr. Coburn and I and other Members of the Committee,
deals with improper payments. And as you know well, improper
payments add up to a lot of money. The Federal budget deficit,
which about 6 years ago peaked at $1.4 trillion, it has come
down; it is closer to $400 billion today, still way too much.
But of that, about a quarter of that, $125 billion, according
to GAO last year, was the amount of our improper payments,
mistaken payments, accounting errors, in some cases fraud, $125
billion. That is a quarter of our budget deficit. And we were
marking up legislation in Finance to address that further,
hopefully to enable us to better recover monies that have been
improperly paid. So I apologize for having to slip out for
that, but it was a good mission, and I think a successful one.
I want to give my first question to you, Ms. Brain--I want
to call you ``Brain.'' I have your name on my brain.
Ms. Brian. Thank you for the compliment. [Laughter.]
Mr. Carper. I was telling her earlier I have a good friend
whose last name is Brain, Chuck Brain. So we have a good time
with his name. I am sure we will have one with yours as well.
But thanks for bringing your brains, all of you bringing your
brains today and your hard work to this hearing.
But, Ms. Brian, in your testimony, you discuss the threat
to independence that longstanding vacancies in IG positions
across our government can create. Just take a minute and talk
to us about the effect, please, on the rank-and-file employees
in those IG offices and what kind of impact it has on their
work, just in a practical way. Thank you.
Ms. Brian. Thank you, Senator Carper, also for your work on
improper payments.
Senator Carper. You bet. Labor of love.
Ms. Brian. It is really boring but important.
Senator Carper. Tom Coburn, if you are out there
listening--and I know you are--I am still doing the Lord's
work.
Ms. Brian. Yes, I think that is a great question, because
what you have are career staff who have given their lives to
the mission of rooting out waste, fraud, and abuse at their
agencies, and as I mentioned in my testimony, one staffer
described the lack of leadership in their office as being like
a plant that is left unwatered for years. The demise of morale
in the office is significant. When you not only have a lack of
leadership but a real sense that the leadership is often in
cases of these longstanding IGs that we have spoken about that
are in acting capacity, almost working counter to the purposes
of the agency. So they are among the big victims of these
vacancies. They are the people who have given decades often to
investigations and audits, and their work is either ignored or
slowed to a terrible pace, or in some cases as we described,
actually just held up because it is too embarrassing for the
agency.
Senator Carper. Thank you.
Does anybody else have a view on that, just very briefly?
You do not have to, but OK, thanks.
[No response.]
Thank you, ma'am.
A followup question, this would be for you Michael. I
understand that CIGIE plays a role in helping to identify
qualified candidates to fill IG positions. How does that
process work? In what ways do you think it could be improved to
help better identify qualified candidates? Do we have any role
in that at all? Thank you.
Mr. Horowitz. So we have set up an IG candidate panel that
is currently chaired by the IG at the Federal Election
Commission, and the responsibility of the panel is to speak to
vacancies when they occur so that people within the IG
community and outside the IG community are aware of them,
encourage people to apply, seek to have strong candidates apply
for those positions.
When they get the applications, often it is not necessarily
for a specific IG vacancy but for an IG position generally.
They will look at it. The panel will review it. They will
consider the various characteristics that we believe make a
strong IG, some of which I talked about in my opening
statement. They will then recommend those candidates that they
have looked at, that they believe meet those qualifications, to
the White House, and at that point, as I mentioned earlier, we
are not further involved or consulted on those candidates. They
go to the White House for review.
I think one of the things that we have talked about and one
of the things that I think we could do more of getting the word
out beyond the IG community and beyond the Federal Government
to State and local government agencies who have--there are a
number of very strong oversight organizations, obviously, in
State and local government.
I was in the private law firm world, before coming back to
the government, for 10 years working with corporate compliance
officers, ethics officers. There a vast majority, as the
Chairman mentioned earlier, of very highly qualified candidates
in the private sector who do many of the same things we do with
a very different structure and very different responsibilities.
But we could be doing more to reach out to them, I think.
Senator Carper. Good. When I was Governor, I was nominated
by President Clinton to be on the Amtrak Board of Directors,
and I had to go through a vetting process. I had been a naval
flight officer (NFO) with top secret clearance, and I was a
Governor for a number of years, and I went through a vetting
process that was just, I thought, deplorable. It took forever,
a lot of time, energy, and I thought, my God, just to be on the
Amtrak Board? They should pay me to do that.
One of the reasons why it is hard to get people who want to
do these jobs--they are important jobs, they are hard jobs, and
you are on the point of the spear in many cases, and some
important issues. But the vetting process can just take
forever. We do not treat people very well through that process
sometimes, and we have to do better.
I appreciate your answer and your ideas, and I would ask
for the record if Danielle and Daniel if you all have some
points to add to what Michael has said on that point, how do we
get more people who are well qualified wanting to do these
jobs, that would be helpful.
Maybe one more, if I could, just real briefly. Mr.
Horowitz, does CIGIE start vetting candidates--and you may have
said this--only when there is a vacancy? Just come back to
this. Or does CIGIE continuously vet candidates who would be
willing to serve as an IG at any agency? I think you said that.
Mr. Horowitz. We run the process continuously. So even if
there were no vacancies, we would still collect applications
because we know with 72 IGs there is going to be turnover.
Senator Carper. OK. Last, when a Presidentially appointed
IG steps down or is removed, there is broad awareness of the
vacancy, and at least certain amount of public pressure to fill
it, but I am concerned that there may be less attention and
urgency with respect to the IGs appointed by an agency head.
Ms. Brian, would you take a minute and tell us, can you discuss
the different dynamics for these vacancies and whether you
share those concerns? Thank you.
Ms. Brian. Thank you, Senator Carper. Actually, my
colleague has a copy of the website that POGO maintains--Where
Are All the Watchdogs?--where we actually track both
Presidential and agency-appointed nominees and vacancies. So we
maintain all of them together.
There is a whole separate question about agency IG
appointments and whether they have the same kind of
independence as Presidential appointments. We think it is sort
of a nuanced question. We are not necessarily opposed to the
fact that there are some--particularly because they are often
boards rather than single heads of agencies that the IGs are
responsive to. So, of course, there is--a couple of the current
vacancies are agency appointments, but they do not tend to be
as longstanding as the Presidential appointments.
Senator Carper. OK. Thanks. The Chairman and I have an
interest in--we think we have too many Senate-confirmed
positions in the government, and that may be a view held by
some others here as well, and we have an interest in further
reducing the number that have to come before us, because we
think we are oftentimes in the Senate an impediment to getting
people who want to serve and actually into positions where they
can serve. So if anyone is interested in maybe joining that
cause, you are welcome to.
Chairman Johnson. Thank you, Senator Carper.
Senator McCaskill--I know this is a real issue dear to her
heart. She worked very closely with me as Chairman of that
Subcommittee that was investigating Charles Edwards. It was
right before that hearing of our Committee that Charles Edwards
was transferred. But she has another meeting she has to go to,
and I am going to let her ask a quick question.
Senator McCaskill. Thank you. Very briefly, love you, POGO.
Thank you.
Second, yes or no, Mr. Horowitz: Do you believe all IGs'
salaries should be public?
Mr. Horowitz. Yes.
Senator McCaskill. Are they now?
Mr. Horowitz. No.
Senator McCaskill. And I just want to go on the record that
I will not rest, I will not stop until we know every salary of
every IG in our government. It is a scandal.
Thank you, Mr. Chairman.
Mr. Horowitz. Can I just briefly----
Chairman Johnson. Sure.
Mr. Horowitz. Senator, we have done the followup that you
asked us to do at the last hearing. It is actually an
extraordinarily--I have learned, I am sure you are aware, it is
an extraordinarily complicated issue actually. There are, as it
turns out, multiple pay scales for IGs across a number of
titles within the Federal Code, including, in fact, as I
learned, Presidential appointees have different pay levels.
So, for example, those of us who were appointed in 2012 and
2013 are frozen at the pay scale that was in existence then
because of the appropriations act that did not include the 1-
percent pay raise for us, but newer IGs appointed in 2014 are
under the current pay scale. So as I have learned, they are
actually paid more than the IGs appointed in 2012 and 2013.
So it has taken us some time, actually, to understand some
of these nuances, and we----
Senator McCaskill. Mr. Horowitz, let me interrupt you for a
minute. I get all that. But there are IGs in this system that
do not want their salaries public because they are making an
obscene amount of money in a very tiny agency. They do not want
to say what their salaries are because they know we are going
to go crazy when we hear it, and so will the American people.
So that is why they are recalcitrant about telling you how
much they make. I know there are these different pay scales,
and I want to address that. But, if those people who are making
$300,000 a year as an IG in a tiny agency, think they are going
to be able to hide that much longer, they are wrong.
Mr. Horowitz. No, and, Senator, what I was getting to is
the reason it has taken us the time to get all the material
together as well as you asked about what kind of work folks are
doing, we now have that together. We have reached out to your
staff. We are going to be meeting I think in 2 weeks.
Senator McCaskill. Great.
Mr. Horowitz. I was just trying to give you the background
as to why it has taken----
Senator McCaskill. I understand. I just did not want you to
think I lost my passion.
Mr. Horowitz. I knew that was not the case.
Chairman Johnson. I sense she is kind of waning a little
bit. [Laughter.]
Ms. Brian. I want to thank you for the love, Senator
McCaskill.
Chairman Johnson. Senator Lankford.
OPENING STATEMENT OF SENATOR LANKFORD
Senator Lankford. Thank you.
Mr. Horowitz, thanks for being here, and for all of you as
well, and what you are doing on this. Let me ask, has the
Council recommended names for Interior for the IG?
Mr. Horowitz. I do not know whether we have specifically. I
would have to go back and ask, because it has been a couple of
years----
Senator Lankford. It has been years that it has been open,
so--and I believe my question is: Is there an urgency within
the Council to say this has been open for years, we have to
feed them names because it is open?
Mr. Horowitz. I am somewhat speculating here. I am guessing
we have made recommendations for that position, but I can go
back and check.
Senator Lankford. I would like to know on Interior, on VA,
on Export-Import (Ex-Im) Bank, and on CIA specifically if there
are names that have been recommended.
Mr. Horowitz. And my understanding on--since they occurred
while I was Chair, VA and CIA I know the answer is yes.
Senator Lankford. OK, but what about Ex-Im Bank?
Mr. Horowitz. I have to go back and check on the other
ones. Ex-Im Bank has a nominee now, so I would have to go back
and see what happened earlier.
Senator Lankford. OK. The Chairman brought up this issue
about the 210 days.
Mr. Horowitz. I am sorry. Let me correct myself. Ex-Im Bank
does not have a nominee. I was thinking of USAID.
Senator Lankford. At all?
Mr. Horowitz. At all. I will go back and check.
Senator Lankford. That is what I had heard as well, and
obviously Ex-Im Bank is in the spotlight right now, and there
have been multiple issues that have happened around it.
My question is on the 210-day limit before the Acting has
no relevance and all the law and all the issues that are there.
I get that. What incentives can be built into--this builds on
what the Chairman was saying--to provide incentives that we
have someone at least nominated before that time period? There
has to be some sort of incentive that can be built in and some
ideas that are out there so that we do not have Acting for 2, 3
years or to have really a Deputy to take this one.
Ms. Brian. Well, Senator Lankford, the issue is complicated
in that it is a Presidential appointment, and there is sort of
the separation of powers issue.
Senator Lankford. Right.
Ms. Brian. So I would encourage the Congress to remember
that you are the holders of the purse strings and you have
other ways of making the Executive Branch pay attention. You
cannot force the Executive Branch perhaps to make an
appointment, but you can get their attention by not doing
things they would like you to do until they do make those
appointments.
Senator Lankford. OK. So let me ask a question that is a
purely speculative question. Why would there not be a
nomination for an Inspector General in an agency? We have
competent people that are being suggested. We have lots of
Americans that are willing to be able to serve. Why would there
not be a nomination for an Inspector General?
Ms. Brian. Well, as you said, it is clearly a speculative
answer, but there is no doubt that Inspectors General who do
their job well are often bringing bad news to the fore, and
they are often not popular with their agency or the Executive
Branch because they are often the bearers of bad news, and so
that is an obvious disincentive to----
Senator Lankford. I am not sure they are the bearer of bad
news. They are just the bearer of news, period, of what is
going on. So my assumption is for the IG their job is not to go
find bad news. It is just to find any news, what is happening
right, what is happening wrong. It is a transparency piece on
it, and my question is: Why would we not want to have
transparency in certain agencies?
Ms. Brian. Well, there is no question that what you are
saying is correct. You are asking what would be the incentive
not to appoint one----
Senator Lankford. Correct.
Ms. Brian [continuing]. And that was why I answered----
Senator Lankford. Because they can also bring bad news.
Ms. Brian. Correct.
Senator Lankford. Correct.
Mr. Epstein, were you going to say something on that as
well?
Mr. Epstein. Yes, I mean, I would say, No. 1, it is clear
that President Obama has nominated IGs as early as 2009, and he
has nominated IGs as recently as this year, and I think that if
you just look at the incentives of the President, it is not
just a question of news at all. It is also if there are issues
at the agencies, appointing an IG who is effective and
permanent is going to reveal findings and ultimately if the
President, especially as this Committee knows, you have someone
like Charles Edwards who himself as the Acting IG was engaged
in misconduct, that could make the nominating President look
bad. And so I think there might be political reasons.
I also think that when we look at the question of how do
you hold certain IGs accountable, there is--as my organization
was told by the previous Chairwoman of CIGIE, CIGIE told us in
a letter that it has no allocations or resources to conduct
audits, investigations, or evaluations. Apparently--and I think
IG Horowitz could probably talk more about this--at least for
the Integrity Committee of CIGIE, that is all done by the
Federal Bureau of Investigations (FBI). And so, if you look at
the case of Charles Edwards, there was not a report by CIGIE
until after he had already resigned. If you look at Charles
Edwards' own investigations, the Mayorkas issue with the U.S.
Citizenship and Immigration Services (USCIS), the Cartagena
issues with Secret Service members, these were all
investigations that went on for a number of years, and I think
what you see as a problem with Acting IGs is, as Ms. Brian has
indicated, they want to curry favor with the President, they
want to curry favor with the agency heads, and so they have an
incentive not just to avoid investigations but to delay
investigations.
Senator Lankford. Mr. Horowitz, for the Inspectors General,
when they are going to do a long-term look of a real
investigation, whether they have a tip, whether they have
inside information, whatever it may be, who chooses what
investigations they take on and what they choose to report on?
Who makes that decision?
Mr. Horowitz. Well, in my office it would be me consulting
with the leaders of my divisions based on their
recommendations.
Senator Lankford. So how is that different for an Acting
IG?
Mr. Horowitz. That would still occur in terms of a process,
I think, for----
Senator Lankford. But how long does a report take? If you
are going to do a more lengthy investigation--I know it varies
from place to place, but how long does that take?
Mr. Horowitz. They can take 6 months to more than a year,
depending upon the complexity of it. Our Fast and Furious
report, for example, took 18 months.
Senator Lankford. Have you got all the documents you need
for that yet, by the way?
Mr. Horowitz. For that one we do at this point. For others
we do not. And I appreciate your support on that issue.
Senator Lankford. There is still plenty to do on that as
well. My question is then with an Acting IG, if they do not
know how long they are going to be there, do they take on the
larger reports that are more lengthy? Or do they typically skip
those?
Mr. Horowitz. Well, I think that is the challenge for an
Acting IG, whether they are seeking the job or not, is the
unknown of how long is that position going to be vacant. The
longer it goes, the more decisions they have to make. You
cannot delay decisions indefinitely. And that is precisely the
challenge, Senator, what you have outlined, which is, Do we
undertake a long-term review that could impact resources, that
might be inconsistent with what the permanent IG will want to
do?
Senator Lankford. OK. Thank you. I yield back.
Chairman Johnson. Thank you, Senator Lankford. Senator
Baldwin.
OPENING STATEMENT OF SENATOR BALDWIN
Senator Baldwin. Thank you, Mr. Chairman. I really want to
thank you for holding this very important hearing. Thank you to
the witnesses for sharing your very valuable insight on this.
As the Chairman mentioned in his opening comments, we have
had a real opportunity to see in Tomah, Wisconsin, the role of
the Department of Veterans Affairs Office of Inspector General
and how critical it is in auditing and evaluating VA programs,
conducting health care inspections, reviewing medical center
operations, and investigating allegations of serious violations
of policies and procedures by high-ranking members of the
Department. The failings of the VA and the VA Office of
Inspector General in Tomah come against the backdrop of a year
of incredibly challenging problems for the VA. While I
personally believe that the overwhelming majority of VA and VA
OIG employees strive every day to deliver for our veterans,
they need stable leadership. That is why I have called on the
President to nominate a permanent Inspector General for the VA.
I would also point out that not only do the IGs provide
information to the agencies and the President, they also
provide incredibly important information when Congress needs to
exercise greater oversight or pass further legislation. And if
this information is not fully transparent, if it is not fully
accessible, if it not fully objective, it impacts our ability
to do our jobs.
This Committee has done some important work in advancing an
IG reform bill, and I was pleased to co-author provisions in
the bill with Senator Johnson that refer specifically to what
we were seeing in Tomah.
I just have a few questions, and, frankly, they are mostly
to dig deeper into questions you have already been asked to
specify information that I would like to receive either today
or in followup.
First, following up on some of the Chairman's questions of
you, Mr. Horowitz, I want to get a greater sense of how often
appointing authorities act on your recommendations versus
alternative routes. There are other ways that potential
nominees can come to the attention of appointing authorities,
including the President of the United States. And so I would
like to know, on a more granular level, how often the President
acts on recommendations made by the panel, and also if you ever
receive feedback from the appointing authority on the
recommendations and the individuals that you send. I know you
said earlier that you do not have those numbers with you, so I
would certainly take them in followup to this hearing.
Mr. Horowitz. Absolutely, and I will do that.
And on the feedback issue, my understanding is we generally
do not get feedback. It is simply a one-way passing of
information generally, here are the recommended candidates, not
an explanation back as to why some were not picked, for
example.
Senator Baldwin. All right. Also in follow-up to a previous
question, can you share the number of candidates for the VA
Inspector General vacancy that have been forwarded from the
Council to the Office of Presidential Personnel?
Mr. Horowitz. I will follow up on that.
Senator Baldwin. Do you have that with you today?
Mr. Horowitz. I do not know off the top of my head. I know
there are some. I just do not know the number specifically.
Senator Baldwin. OK. And, if you would, I would be
interested to know when those resumes and names were forwarded.
Mr. Horowitz. I will follow up.
Senator Baldwin. I would like to know how long that
information and those ideas have been before the President.
Mr. Horowitz. And, of course, as I mentioned, Senator,
there will be individuals recommended generally for IG
positions that will have been there when that vacancy occurred
January 1, 2014. So in our view, those are individuals we send
to have strong experience and abilities across the board and
can fill positions generally. So there will be both candidates
we would say would be available generally, and then I will
followup on specific candidates.
Senator Baldwin. Each of you in your testimony gave some
considerable thought to why Acting IGs are perhaps seen as less
credible in the eyes of agency leaders, Members of Congress,
and the public, as well as why they might lack sufficient
independence. I heard Ms. Brian elaborate on that a little bit,
and I wonder, Mr. Horowitz, if you could elaborate a little bit
more on your concerns of having Acting Directors of long
duration.
Mr. Horowitz. Well, I think there are several issues that
come with that. One we have talked about briefly, which is
decisions that have to be made about long-term hiring, long-
term policies, long-term practices. Those are difficult
decisions for an acting head of any agency. I was in a U.S.
Attorney's Office, I was in the Criminal Division when
transitions occurred between Administrations. Those were
difficult times for even the acting heads of those
organizations to make those kinds of decisions.
And with regard to Inspectors General, these are obviously
very challenging, difficult jobs for a variety of reasons, and
there is an enormous amount of protection and from the statute,
the IG Act, that goes to Inspectors General with regard to
removal. That does not apply to anybody else. Everybody else is
a career employee in the organization that is under career
civil service laws. But for me, in a Presidentially confirmed
position, there is only one person in the entire government who
can act and remove me, and that is the President of the United
States. And that provides a significant amount of protection
and independence and for me to exercise that independence.
Senator Baldwin. Thank you.
Chairman Johnson. Thanks, Senator Baldwin. Senator Ernst.
OPENING STATEMENT OF SENATOR ERNST
Senator Ernst. Thank you, Mr. Chairman. I do appreciate you
holding this hearing. This has been an issue ongoing for, I
think, quite a while now, and before I do get to my questions,
I just would like to make a few remarks as to this issue. This
is very important to me, and particularly with the avenue that
I am going to take, particularly to our veterans.
I have been concerned our veterans are not receiving the
highest quality of mental health care at many VA facilities,
and tragically, in February, Iraq and Army veteran Richard
Miles of Des Moines, Iowa, committed suicide. And I was deeply
troubled by reports from his family, from his friends, and both
local and national media outlets which claimed that Richard may
not have received adequate mental health care from the
Department of Veterans Affairs.
That led me to ask the Inspector General to look into
Central Iowa VA's mental health care programs, the care that
Richard received for his post-traumatic stress disorder (PTSD),
and their management of his particular case. That was in
February. It is now June. And this has been so deeply troubling
to me.
I would note that the Office of the VA IG has told me on
multiple occasions that they would get the report to me. Again,
I requested this report in February. It is now June. They told
me they would have the results to me first in April, and after
receiving no response, we reached out again, and then they
said, ``We will have it to you in May.'' We reached out again
at the beginning of this week, still have not received an
answer.
So it is very frustrating and absolutely unacceptable that
it has taken so long. We have many veterans that seek
assistance with our VA systems, whether it is for mental health
care or other types of care. Especially with our mental health
care, we need to ensure that they are receiving timely and
adequate care, and in this case I have no idea whether that
happened or not because we have not gotten a response.
So as a Senator, I do have the responsibility to ensure
that those veterans are receiving adequate care and that we are
living up to the promises that we have made to these veterans
as a Nation.
So the VA and its IG need to come forward with information
that will provide Iowa veterans a better understanding of the
adequacy and management of their mental health care and those
programs.
So while I am in a position right now that I can no longer
do anything for Richard, I am in a position where I can do
something for many of our other veterans that are seeking
mental health care to help with these invisible wounds. And
this could be of any era of veteran. But the only way that we
can do this is to ensure that we have efficient and motivated
IGs, and especially one in the VA that can be held accountable.
Thank you for listening to that, but with that, I would
also like to ask a couple of questions.
Mr. Horowitz, you wrote in your testimony that one of the
Council of IGs' most important responsibilities is to submit
recommendations of individuals to the appropriate appointing
authority. Would you recommend Mr. Griffin to be the IG for the
VA? Have you had any discussions with the White House on a
formal nomination process for the VA IG spot?
Mr. Horowitz. I have had conversations, and my
understanding is the Chair of the panel and the panel itself
that we have set up has also had discussions in the sense of
recommending candidates for the position. When I say
``discussions,'' again, they are usually one-way discussions.
It is us recommending candidates to them.
Senator Ernst. And have you seen any responses,
particularly with Mr. Griffin? Is he a candidate for the
position?
Mr. Horowitz. I do not know if he is a candidate, and I
have not gotten feedback on where things are as to the
candidates we have recommended.
Senator Ernst. OK. And therein lies some of the problems, I
think, that maybe recommendations are made, but they are not
acted on. That I am not sure of. I just know that the VA does
need an IG and somebody that will be responsive to these types
of situations.
Also, Mr. Horowitz, and, of course, Ms. Brian and Mr.
Epstein, last year former White House Deputy Chief of Staff and
now the VA Chief of Staff, Rob Nabors, said that the VA was
crippled by a corrosive culture and poor leadership, which
negatively impacts the delivery of care at VA. And considering
this White House report, VA scandals with systemic wait time
falsification--we could go on and on. And it is on the GAO's
high-risk list. In your opinion, why hasn't the White House
prioritized nominating and getting through the Senate a full-
time IG? Are there areas we need to consider?
Ms. Brian. I just cannot speak to why they have not
prioritized it. It seems so obvious to me that it should be a
priority. And in my written testimony I gave some examples of
how we have had our own experiences, a very negative experience
with the Acting IG. So I would hope that they find someone else
to fill the position.
Senator Ernst. Thank you.
Mr. Epstein. I cannot speak specifically about the
President's state of mind, but I think there are two things
that might shed some light on some of those questions you
asked. The first is--and I would be happy to kind of submit an
additional statement on this. The President, I believe, under
the Vacancies Act, could--he has done so with the National
Labor Relations Board (NLRB). He could put an IG into a
position which would not have to be past that 210-day timeline
and then would not have to be a Deputy. So I think the
President has--is ready, willing, and able--maybe not willing
but has the ability to put someone there. And so it is a
question of the pressure to do that. Why do you do that for
certain boards that may be politically beneficial, but you do
not do that when it comes to Inspectors General.
I think the other thing is a lot of what has been discussed
is the fact that there may be delays in appointments through
that vetting process. But as part of that vetting process,
whether it is the Office of Presidential Personnel or the
President's Counsel, they get background checks on nominees
from the FBI. So one thing that if my organization tried to do
this, we would be stonewalled, but hopefully the Senate would
not be, is the Senate could request information, whether the
records are kept confidential, but the number of records are
not, of how many background checks were done for potential
nominees to the Department of Veterans Affairs, how many
background checks were done for potential nominees to the
Export-Import Bank. Then you can determine how, in fact,
willing was the President to consider nominations. If you
cannot get the facts from CIGIE, you can get information
concerning how many potential nominees were actually
considered, and that could give some kind of sunlight to
whether the President took seriously the need to actually put a
permanent Inspector General to prevent a lot of these problems
that you discussed at Veterans Affairs.
Senator Ernst. Thank you, and thank you, Mr. Chairman. And
I would say that of all of the IG positions that are vacant,
this one literally has lives riding on it.
Chairman Johnson. I totally agree. I made that same point.
Obviously, one of the purposes of this hearing is to put that
pressure on the White House to get somebody appointed, or
certainly nominated, and hopefully the Senate would quickly
confirm that individual. So hopefully the outcome of this
hearing will be that nomination. Senator Ayotte.
OPENING STATEMENT OF SENATOR AYOTTE
Senator Ayotte. Thank you, Chairman. I want to thank
Senator Ernst for her questions, and I just have to say this is
dumbfounding. President, if you are listening, the fact that
since December 2013 we have not had a permanent Inspector
General in the VA, I mean, I cannot tell you--what happened in
Iowa, what happened in Arizona, what happened in Wisconsin,
what is happening in New Hampshire, we spent a lot of time on
the floor last summer trying to come up with a reform bill, and
now we are trying to hold the VA accountable to actually give
veterans choice with private care. In my State, we just had a
huge forum the other day on problems that we are having in even
having the VA implement this law. And the President of the
United States has not nominated since December 2013 a permanent
Inspector General. To me this is something that I would think
every American, Democrat, Republican, Independent, would care
about. And of all the priorities that the President could have,
I mean, Mr. Epstein, you mentioned it. He used the Vacancies
Act to fill the NLRB. Well, we are talking about veterans who
are suffering, veterans who have died, and I think there is--
whatever we can do, Mr. Chairman.
But, Mr. President, if you care about our veterans--Mr.
Horowitz, CIGIE has submitted a proposal of someone, as I
understand. It is not on your end.
Mr. Horowitz. That is correct.
Senator Ayotte. CIGIE has submitted recommendations of an
individual or individuals who could serve in this position.
Correct?
Mr. Horowitz. That is correct.
Senator Ayotte. So it is in the President's lap right now,
and it seems like our veterans deserve action on this
immediately by the President of the United States. And I did
not come here today to make this speech, but in listening to
all this, I just cannot believe it, that this would be vacant
since December 2013, of all the things that we are trying to
get right for those who have done so much for our Nation.
So that said, I was very interested, Ms. Brian, in terms of
you said you have had some serious concerns with the current
Acting right now at VA. Could you help us with what those are?
Ms. Brian. Sure. Well, in addition to your own Committee
having had your direct engagement and concerns with--and also
the House having concerns about the operations of that shop, we
shared all of the Senators' concerns when news of the failings
of the Veterans Affairs Department was coming forward, and we
at POGO thought, ``What can we do to sort of help shed light on
how could this be sort of systemically a problem across the
agency?''
And so we worked with Iraq and Afghanistan Veterans of
America and launched a website that said if you work inside the
VA, could you let us know what is your sense of what is
happening so we could have a better understanding of what could
be done to fix the agency. And, incredibly, we had 800 people
come forward. I mean, it was an astounding number of people,
and I think it is important to recognize in this case, this
shows how many people there are who work inside the system, who
care deeply about the mission of the VA, who were taking risk
by coming forward and saying, ``I am a doctor at this
facility,'' ``I am a tech at this facility,'' ``This is what I
am seeing.'' They came forward to give us a sense so that we
could help them do something about it.
Within weeks, we were contacted by the VA IG who asked us
for the names of the people who had come to us, and we said,
``Well, of course, we are not going to give you the names of
the people who are coming to us, but we are very happy to work
with you to give you a sense of what we are learning.'' We were
then immediately met at the door with a subpoena from the
Acting VA IG demanding the identities of the whistleblowers who
were coming forward to try to help fix their agency.
So POGO remains unwilling to abide by that subpoena, but
for us it was indicative of the flawed priorities of that
office, that it was more important to them to sort of identify
who the whistleblowers are than it was to encourage anyone to
help try to figure out what the problems are.
Senator Ayotte. Well, let me just commend POGO for refusing
to comply with that subpoena, because when people come forward
as whistleblowers, the notion that the VA would be more focused
on identifying the whistleblowers versus the underlying
problems I think just demonstrates Exhibit A of what we are
dealing with and why it is so critical that we actually get a
permanent IG with this agency. And you think about all the
things that we do, our veterans, they have served our country,
they have put their lives on the line, they have done so much,
and you would think that that would be the one area we would
prioritize. It is not a partisan issue.
I wanted to followup, Mr. Horowitz, in terms of this idea--
and I heard from listening to Mr. Epstein and Ms. Brian, this
idea of a conflict, it sounds, when we have an Acting IG. It
seems like they are put in the situation where the Acting IG
has to curry favor with the agency head, or there is a
potential that that could happen, and that creates these
challenges that obviously undermine what the purposes of what
CIGIE and the IGs are trying to accomplish.
Can you comment on that? And, also, in your role, do you
feel you have sufficient authority to have oversight over these
Acting IGs to be able to take proper action if you think that
one of them is not performing the way that you believe they
should?
Mr. Horowitz. So with regard to the first question,
Senator, I think one of the challenges for any Acting IG, no
matter how good they are, is that perception that they are the
acting individual. They do not come with all the protections
that I do as a confirmed IG with the IG Act's independence that
comes with it, and that is a challenge, I think, for an Acting
IG no matter how strong they are.
As I said before, I had somebody serving as an Acting for
15 months before I arrived. She did an outstanding job. But
that is always going to be the perception, both within the
organization and external to the organization, because nobody
knows: Are they getting the job? If they are not interested in
the job, when is the person who is getting the job coming in?
All that uncertainty that is there exists.
With regard to the second issue, CIGIE by statute--I do not
have authority over the other IGs--or Acting IGs, for that
matter. They have independence----
Senator Ayotte. So who is the watchdog on that?
Mr. Horowitz. Well, if there are allegations of wrongdoing,
that would go to the Integrity Committee, which is chaired by
the FBI, and we have had discussions with the Committee, this
Committee and on the House side, about concerns that have
existed with regard to the Integrity Committee. But they would
be the ones that would get any referrals of complaints about
misconduct-related issues over Acting IGs. The Chair of CIGIE
is not empowered to do anything with----
Senator Ayotte. Ms. Brian, I know you wanted to comment.
Ms. Brian. I just wanted to add to Mr. Horowitz, but, of
course, the Congress is also the watchdog, and the Congress has
often done a terrific job at playing that role of doing--the
staff doing great investigations into problems with the IG
office.
Senator Ayotte. So I know that my time is up, but last
Congress, we were so worried, myself, Senator Boozman, and
Senator Shaheen, we actually introduced a piece of legislation
that if the positions were not filled within 210 days, the
vacancy under the law, that the authority to fill would then be
transferred to Congress, and that would eliminate this sort of
idea that maybe the Executive Branch has a disincentive to have
real rigorous oversight. And I think that is something that we
should revisit and consider looking at some other model to make
sure that we actually get these things filled and also that we
think about this idea of a potential conflict. So I thank all
of you for being here.
Chairman Johnson. Thank you, Senator Ayotte, for your
passion on this issue. I think you missed my opening comments
about the Tomah VA and the daughter of Thomas Baer, who told me
over the phone that if she had only known--in other words, if
the Office of Inspector General had only issued a report so the
public understood the problems of the Tomah VA, she never would
have taken her father where he basically died of neglect in
that facility. So these are issues of life and death, and thank
you for your passion on this.
Mr. Horowitz, we obviously have, this Committee, I have had
some real problems with the VA Acting Inspector General, Mr.
Griffin. Because of the Tomah VA situation, we have been trying
to get information, trying to get the case file. It was
revealed in a news report that there are 140 different
inspections and investigations where reports have been issued
that have not been made public. We could not get the case file.
We could not get the communications, even though we worked with
the Office of Inspector General for a number of months. We
finally had to take the extraordinary step of issuing a
subpoena.
Now, we have the power to issue that subpoena. I wish we
have not had to do that. We issued that subpoena on April 29,
looking for a response by May 13. We have received some
response, but not complete responsiveness.
I want to just ask you, because I am actually kind of
shocked that the Office of Inspector General subpoenaed the
offices of POGO. Do Offices of Inspectors General have that
power to subpoena a group like POGO?
Mr. Horowitz. Under the IG Act, Inspectors General have
authority to issue documentary subpoenas to outside
organizations. I do not know the facts of----
Chairman Johnson. Do you think that is an appropriate
subpoena to that group, looking to find out who the
whistleblowers are?
Mr. Horowitz. I would not in my position consider issuing a
subpoena to any organization to look for information about
whistleblowers.
Chairman Johnson. Has CIGIE opened up an investigation in
the Integrity Committee against this Office of Inspector
General?
Mr. Horowitz. I would have to reach out to the Integrity
Committee, because that is chaired by the FBI by statute. It is
not----
Chairman Johnson. I would ask that you check into that for
me. Mr. Epstein.
Mr. Epstein. Yes, I would actually respectfully disagree
with IG Horowitz. I actually do not think the VA OIG under the
Inspector General Act has any authority to subpoena any outside
entity that has no purpose that deals with Federal program
administration. Subpoenaing an organization that is out there
protecting whistleblowers and conducting oversight over the
Federal Government has nothing to do with a programmatic
function. It is clearly ultra vires under the Inspector General
Act.
Chairman Johnson. From my standpoint, I think one of the
primary roles of the Offices of Inspectors General is to
investigate cases where the agencies and departments are
retaliating against whistleblowers. I mean, whistleblowers are
really kind of--shining the sunlight that whistleblowers bring
to Congress and bring to the public, it is about the only way
we can reform and improve the efficiency and effectiveness of
government. And so we offer those whistleblower protections so
that we encourage those people to come forward.
When the Office of Inspector General--and that is, of
course, what happened with Charles Edwards. I think that is
probably the most egregious problem with the Inspector General
Charles Edwards. He was retaliating against people that were
issuing reports that he did not like.
So, Ms. Brian, you talked about in your testimony that
Richard Griffin, his office had undermined whistleblowers. Can
you describe that a little bit more?
Ms. Brian. Well, as soon as the subpoena occurred, we felt
it was our responsibility to alert people who were contacting
us that such an inquiry had taken place and that we certainly
intended not to comply with it. But as you can imagine--and
there was some wonderful support from former Senator Coburn
also who wrote to them demanding an explanation of why they
were doing this.
But the bottom line was it creates a chilling effect
because now you have people who thought, OK, well, this is a
safe place to go, and we are doing everything that we can to
protect their identity, but to think that there is an office
that has the capacity--whether they do or not, they were trying
to exercise the capacity to identify who the people were who
were coming to us. It had a terrible chilling effect.
Chairman Johnson. And, again, was that the only purpose of
that subpoena? Is there any other justification for the
subpoena you received from the Office of Inspector General for
Veterans Affairs?
Ms. Brian. You would have to ask them, but I think the fact
that we said we are very happy to work with them to identify
what information we were getting without revealing identifying
details of who the people were, and they were not interested in
any conversations of that kind.
Chairman Johnson. Can anybody, any of the three witnesses,
speak to other instances of this type of retaliation against
whistleblowers or retaliation within the Offices of Inspectors
General? We obviously saw it with Charles Edwards. We are
seeing it here, I think, with the Office of Inspector General
at the VA. Are there other instances of this? Is this
widespread, or is this really an anomaly?
Ms. Brian. Well, Senator, as I mentioned in my oral
testimony, there is currently a case involving--and this is
actually a confirmed IG at the Commerce Department, who has
been found through House investigations to have retaliated
against whistleblowers. And as it turned out, it has only
recently become clear that Todd Zinser had withheld evidence
that, in fact, he had been found to have retaliated previously
against whistleblowers from the confirmation process. And so we
have sort of a current case where you have someone who is a
sitting IG where that has taken place, and that actually----
Chairman Johnson. Is he still in that position?
Ms. Brian. Yes, he is. And we have asked the President to
remove him. So that is something that I think is also worth
noting. When you mentioned earlier--of course, we all feel a
great urgency in filling the vacancy, for example, at the VA
IG, but once there is a nominee, I really would encourage the
Congress, and the Senate in particular, to take the role of
confirmation very seriously. That is part of why you need to
not have such a lengthy process before the nomination, because
you need to give the Congress time to do a thorough vetting as
well.
Chairman Johnson. Well, this Committee is dedicated to
that.
Mr. Epstein, I do not want the moment to pass, because I
know you have done an awful lot of work with the State
Department's Office of Inspector General in terms of how they
may or may not have responded to the revelation that Secretary
Clinton was storing probably official e-mails on a private
server. Can you just give us your thoughts in terms of how a
permanent Inspector General should have responded to knowledge
that Secretary Clinton was, I believe, violating State
Department protocols and policies?
Mr. Epstein. Well, Senator, we know for a fact, based off
NARA's response to the same inquiry we sent to the OIG, that
the OIG has records in its possession concerning whether
Hillary Clinton was complying with the Federal Records Act. And
I think in this case, Harold Geisel, you know, from a lot of
work that has been made public by others, was viewed even by
GAO as having a conflict of interest. So I think what a
permanent IG would have done is avoided that conflict of
interest that we have all discussed and actually been able to
get that information public in a report.
We know that Mr. Linick, who is now the IG, has been very
active in doing thorough reports about e-mail record
preservation at the State Department, and that is something
that had he been in place earlier, we may have had a lot of
these problems avoided.
Chairman Johnson. Are you aware whether Mr. Geisel was
aware of Secretary Clinton's violation of the policies?
Mr. Epstein. From the records that my organization has
received, we know that there is a substantial likelihood that
at the time he was the Acting IG at the State Department, there
were records or communications in his possession that were
shared with the National Archives concerning Hillary Clinton's
record preservation, but I can only speculate as to whether he
was directly involved or whether it was others in his office.
Chairman Johnson. OK. But, again, you do not have the
documented evidence of that. All you know is that there were
some documents or a document that was responsive to a FOIA
request that you simply cannot get hold of?
Mr. Epstein. Yes, the National Archives has said that those
records are subject to deliberative process.
Chairman Johnson. OK. Thank you.
Senator Carper--oh, go ahead.
Ms. Brian. Mr. Chairman, I am sorry. I realized there is
another example that I made a quick reference to in my oral
testimony of a current retaliation case. Yesterday it was
reported by McClatchy newspapers that a Federal judge is
investigating allegations that the then-Acting IG of the
Department of Defense destroyed documents during the high-
profile leak investigation of NSA whistleblower Thomas Drake.
We have seen the letter to the Federal judge, and the Federal
magistrate has sent to the Public Integrity Section of the
Justice Department, requesting that they look into this matter.
And the two people who were referred, one was the then-Acting
Inspector General Lynne Halbrooks, who has just retired, but
also the current General Counsel of the DOD IG, Henry Shelley.
Chairman Johnson. Well, thank you for that. Mr. Horowitz, I
think your Integrity Section is going to be somewhat busy here.
Senator Carper.
Senator Carper. I want to turn away from Hillary Clinton
for a moment and get back on track here just a little bit. The
situation we have here is we still have too many IG vacancies.
I am troubled by the fact that there has not been a Senate-
confirmed IG at Interior for over 5 years and concerned why
there has not been a Senate-confirmed IG at the Veterans
Administration for more than a year. And I have been worked
hard, along with my colleagues here, to make sure that that is
brought to the attention of the administration, including the
very top of the administration, so we can get some action. And
we are seeing some action, and we need to see some more. So I
hope that will remain the focus of what we are about here
today. We are wasting too much money in this government. Any
big organization wastes money. And we do not have it to spare,
so we need to redouble our efforts.
I have maybe one question for Mr. Horowitz and then another
one, if I can, for Ms. Brian. They are short questions.
Hopefully, short answers.
Mr. Horowitz, as you have talked with some of the highly
qualified candidates who have been considering going through
this process to fill a vacancy, has the difficulty of
navigating the process and the length of time it takes impacted
their decisions to put themselves forward as a candidate?
Mr. Horowitz. It has certainly made them ask themselves the
question about the process, and, frankly, I had that situation
myself, having spent a year going through this process and at a
time when I was at a law firm and people wondering, am I
leaving, am I staying. Fortunately, I live and lived in the
D.C. area, so I did not also have the problem of wondering what
was I going to do with my family, were they going to have to
move, were we going to move in the middle of a school year, et
cetera. Those are very difficult issues for any nominee to have
to sit and wait and wonder.
Senator Carper. I remember turning to my wife, when I was
trying to--I mentioned earlier I had been nominated by
President Clinton to serve on the Amtrak Board, and I had to go
through all this vetting, which I just thought was crazy. And I
remember turning to my wife at some point in time and saying,
``There is no way I am going to finish doing this. This is just
way too much.'' And she calmed me down, and so I ended up
serving, and I am glad that I did. But, boy, what a pain.
Ms. Brian, a question for you. I know you know many of the
potential candidates for becoming Inspectors General. Do you
think the way the process works or does not work is a barrier
for some who we would be lucky to have as IGs in our agencies?
Ms. Brian. I certainly do think that the current process is
a barrier, and by that, what I mean is that it is sort of a
black hole, and I think more transparency, at least for those
who have been nominated or think they might be nominated, would
be very helpful to encouraging people to serve.
Senator Carper. All right. Thanks.
The other thing I want to say in closing, I finished my
active duty tour in the Navy in the middle of 1973, moved to
Delaware to get an MBA from the University of Delaware. The
first week I was at Delaware, September 1973, I got in my
Volkswagen Karmann Ghia with a rebuilt engine, and I drove up
the Kirkwood Highway from the University of Delaware to the VA
hospital. I had in hand my DD-214, which indicated I was
eligible for certain benefits. And I got to the hospital, it
turned out I was eligible for some dental benefits, and I met a
young dentist who was going to examine me and figure out what,
if any, work needed to be done. I will never forget what he
said to me then. He was just out of dental school, and I think
he was there for a short tour before he actually went off to
practice on his own. And he said, ``Mr. Carper, you need to
know this.'' He said, ``This is not a very good hospital. They
do not do very good work here. The morale is not good.'' It
turn out they had 16-bed wards, had a pharmacy that was messed
up. They did not do outpatient surgery, and they had a bad
reputation. And he said it was well deserved.
That was the fall of 1973. I was elected State treasurer 3
years later, to Congress 6 years after that, and I have spent
since 1983 trying to make sure that the quality of care at that
hospital and the two outpatient clinics in central and southern
Delaware provide exceptional care for our veterans. I am very
proud of the work that they do. Can they do better? Sure. We
can all do better. And they are under the gun to do better, and
I expect them to, and they expect to.
As it turned out, if you go back 6 years ago, across the
country we had reports of as many as 100,000 people dying in
hospitals because of mistakes--not VA hospitals, not VA
outpatient clinics, but hospitals writ large across the
country. And somebody said, ``We have to do something about
that.'' And we have been doing something about that in this
country. And whether someone is dying in a VA hospital in
Delaware or your States or Wisconsin or any other place, one
death is too many, especially if it is a death caused by a
mistake or inappropriate attention or care. And we have to bear
down on them and continue to.
But this has been a problem, writ large, for health care
delivery in this country for some time, and we are doing
better, writ large, across the country. And, clearly, we have
room for improvement in the VA system, and I am committed--I
know our Chairman is and certainly Senator Baldwin--to make
sure that we do that across the country.
To the extent we can do better by our veterans through a
better watchdog at VA, I want to make sure that we do that, and
I am committed to making sure that we fill that position soon.
Thank you.
Chairman Johnson. Thank you, Senator Carper.
I want to thank all the witnesses. You took a lot of time
and prepared some very thoughtful testimony. We appreciate your
answers to our questions.
I think in terms of the two purposes of this hearing, we
have certainly fulfilled the first. I think we certainly
understand how important these positions of permanent Inspector
General are. These people have to have integrity. They need to
be totally accountable and completely transparent. That is
absolutely necessary.
Unfortunately, we really did not find out why these
vacancies have gone on so long. We will continue to work with
the White House to try and determine and get that answer. We
will continue to work with the White House and apply pressure
on them to get these appointments made, particularly with the
VA. And, Mr. Horowitz, I really count on you working with the
CIGIE to take a look at the Integrity Section here and
investigate some of these issues that have been raised during
this hearing. And this Committee also will--we are dedicated to
move quickly on the nomination of Ms. Ochoa for the Inspector
General for the GSA.
With that, let me just say the hearing record will remain
open for another 15 days until June 18 at 5 p.m. for the
submission of statements and questions for the record.
This hearing is adjourned.
[Whereupon, at 11:49 a.m., the Committee was adjourned.]
A P P E N D I X
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