[Congressional Record Volume 164, Number 159 (Wednesday, September 26, 2018)]
[House]
[Pages H9070-H9072]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IG SUBPOENA AUTHORITY ACT
Mr. RUSSELL. Mr. Speaker, I move to suspend the rules and pass the
bill (H.R. 4917) to amend the Inspector General Act of 1978 to provide
testimonial subpoena authority, and for other purposes.
The Clerk read the title of the bill.
The text of the bill is as follows:
H.R. 4917
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``IG Subpoena Authority Act''.
SEC. 2. ADDITIONAL AUTHORITY PROVISIONS FOR INSPECTORS
GENERAL.
The Inspector General Act of 1978 (5 U.S.C. App.) is
amended--
(1) by inserting after section 6 the following new section:
``SEC. 6A. ADDITIONAL AUTHORITY.
``(a) Testimonial Subpoena Authority.--In addition to the
authority otherwise provided by this Act and in accordance
with the requirements of this section, each Inspector
General, in carrying out the provisions of this Act (or in
the case of an Inspector General or Special Inspector General
not established under this Act, the provisions of the
authorizing statute), is authorized to require by subpoena
the attendance and testimony of witnesses as necessary in the
performance of the functions assigned to the Inspector
General by this Act (or in the case of an Inspector General
or Special Inspector General not established under this Act,
the functions assigned by the authorizing statute), which in
the case of contumacy or refusal to obey, such subpoena shall
be enforceable by order of any appropriate United States
district court. An Inspector General may not require by
subpoena the attendance and testimony of any current Federal
employees, but may use other authorized procedures.
``(b) Nondelegation.--The authority to issue a subpoena
under subsection (a) may not be delegated.
``(c) Panel Review Before Issuance.--
``(1) Approval required.--
``(A) Request for approval by subpoena panel.--Before the
issuance of a subpoena described in subsection (a), an
Inspector General shall submit a request for approval to
issue a subpoena to a panel (in this section, referred to as
the `Subpoena Panel'), which shall be comprised of three
Inspectors General of the Council of the Inspectors General
on Integrity and Efficiency, who shall be designated by the
Inspector General serving as Chairperson of the Council.
``(B) Protection from disclosure.--The information
contained in the request submitted by an Inspector General
under subparagraph (A) and the identification of a witness
shall be protected from disclosure to the extent permitted by
law. Any request for disclosure of such information shall be
submitted to the Inspector General requesting the subpoena.
``(2) Time to respond.--
``(A) In general.--Except as provided in subparagraph (B),
the Subpoena Panel shall approve or deny a request for
approval to issue a subpoena not later than 10 days after the
submission of such request.
``(B) Additional information for panel.--If the Subpoena
Panel determines that additional information is necessary to
approve or deny such request, the Subpoena Panel shall
request such information and shall approve or deny such
request not later than 20 days after the submission of such
request.
``(3) Denial by panel.--If a majority of the Subpoena Panel
denies the approval of a subpoena, that subpoena may not be
issued.
``(d) Notice to Attorney General.--
``(1) In general.--If the Subpoena Panel approves a
subpoena under subsection (c), the Inspector General shall
notify the Attorney General that the Inspector General
intends to issue the subpoena.
``(2) Denial for interference with an ongoing
investigation.--Not later than 10 days after the date on
which the Attorney General is notified pursuant to paragraph
(1), the Attorney General may object to the issuance of the
subpoena because the subpoena will interfere with an ongoing
investigation and the subpoena may not be issued.
``(3) Issuance of subpoena approved.--If the Attorney
General does not object to the issuance of the subpoena
during the 10-day period described in paragraph (2), the
Inspector General may issue the subpoena.
``(e) Regulations.--The Chairperson of the Council of the
Inspectors General on Integrity and Efficiency, in
consultation with the Attorney General, shall prescribe
regulations to carry out the purposes of this section.
``(f) Inspector General Defined.--For purposes of this
section, the term `Inspector General' includes each Inspector
General established under this Act and each Inspector General
or Special Inspector General not established under this Act.
``(g) Applicability.--The provisions of this section shall
not affect the exercise of authority by an Inspector General
of testimonial subpoena authority established under another
provision of law.'';
(2) in section 5(a)--
(A) in paragraph (21)(B), by striking ``; and'' and
inserting a semicolon;
(B) in paragraph (22), by striking the period at the end
and inserting ``; and''; and
(C) by inserting at the end the following new paragraph:
``(23) a description of the use of subpoenas for the
attendance and testimony of certain witnesses authorized
under section 6A.''; and
(3) in section 8G(g)(1), by inserting ``6A,'' before ``and
7''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Oklahoma (Mr. Russell) and the gentleman from California (Mr. Gomez)
each will control 20 minutes.
The Chair recognizes the gentleman from Oklahoma.
General Leave
Mr. RUSSELL. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days to revise and extend their remarks and include
extraneous material on the bill under consideration.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Oklahoma?
There was no objection.
Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I urge support of my bill, H.R. 4917, the IG Subpoena
Authority Act. H.R. 4917 would provide inspectors general the authority
to subpoena contractors, grant recipients, and former Federal employees
for testimony necessary for their investigations.
Inspectors general perform a critical role in the performance of the
Federal Government by rooting out waste, fraud, and abuse. In fiscal
year 2016 alone, Federal inspectors general identified potential
savings of over $45 billion. Nearly half of those savings were
identified in the course of the IG's investigative work.
Congress, the American people, and the agencies themselves rely on
inspectors general reviews to find areas for improved efficiency and
effectiveness, but those reviews are limited by the IG's inability to
compel contractors and former employees to cooperate. The IG Subpoena
Authority Act gives inspectors general a much-needed tool to fulfill
their investigative function under the Inspector General Act.
To effectively identify waste, fraud, and abuse, IGs should be able
to conduct a thorough and complete investigation. To conduct a thorough
and complete investigation, however, IGs need to be able to talk to the
people involved.
Unfortunately, inspectors general haven't always been able to obtain
testimony from those key individuals. They collect testimony from
Federal employees, but sometimes the employees resign or retire before
the inspectors general can review them. In fact, the IG community has
informed us of many cases that went cold when witnesses left the
agencies or refused to testify voluntarily.
This bill seeks to address these gaps in the evidentiary record by
permitting IGs to subpoena the testimony of witnesses during the course
of an audit or investigation. The bill establishes procedures to ensure
the authority is not abused.
To prevent abuse, inspectors general must get approval from a
subpoena review panel that will be made up of three other inspectors
general. The review panel must approve or deny the subpoena request
within 10 days of the request being filed.
[[Page H9071]]
Further, if a subpoena request is approved by the panel, the
requesting IG must notify the Attorney General of the pending subpoena.
The Attorney General is then able to review the subpoena and may object
to its issuance if it will interfere with an ongoing Department of
Justice investigation. An IG must complete all of these steps prior to
issuing the subpoena.
A version of this bill already passed the House once before. Last
Congress, the committee worked on a bipartisan, bicameral basis to
enact the Inspector General Empowerment Act. When it first passed the
House, the Inspector General Empowerment Act included testimonial
subpoena authority for IGs. Although the provision did not make it into
law, I hope that changes this year.
I would like to thank the Council of Inspectors General on Integrity
and Efficiency, especially the Department of Justice Inspector General
Michael Horowitz, who chairs the Council, and Peace Corps Inspector
General Kathy Buller, who chairs its Legislation Committee, for their
work in support of this bill.
Mr. Speaker, I include in the Record a letter from Ms. Buller
supporting the legislation.
Council of the Inspectors General on Integrity and
Efficiency,
June 7, 2018.
Hon. Trey Gowdy,
Chairman, House Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Hon. Elijah Cummings,
Ranking Member, House Committee on Oversight and Government
Reform, House of Representatives, Washington, DC.
Hon. Steve Russell,
House of Representatives,
Washington, DC.
Dear Chairman Gowdy, Ranking Member Cummings, and
Representative Russell: We appreciate your efforts to address
the Inspector General (IG) community's long-standing interest
in obtaining testimonial subpoena authority (TSA) for all IGs
and would like to outline our views on H.R. 4917, the IG
Subpoena Authority Act. For many years, the Legislation
Committee of the Council of the Inspectors General on
Integrity and Efficiency (CIGIE) has included TSA among its
legislative priorities.
The authority in H.R. 4917 would assist government
oversight by providing a critical tool to address fraud,
waste, and abuse by authorizing all IGs to subpoena the
attendance and testimony of certain witnesses, as necessary,
to fulfill the functions of the Inspector General Act of
1978, as amended (IG Act). CIGIE supports the language in the
bill aligning the scope of TSA with the IG's existing
documentary subpoena authority, found in Section 6(a)(4) of
the IG Act. While requiring that any subpoena be necessary in
the performance of IG work, the language does not limit who
may be subpoenaed, other than with respect to current Federal
employees (as they are already generally required to
cooperate with OIGs).
Congress has already granted some IGs TSA under the IG Act
or through other laws. The Department of Defense Office of
Inspector General (DOD OIG) was provided TSA under Section
1042 of the National Defense Authorization Act of 2010,
codified at Section 8(i) of the IG Act. As noted in the
Congressional record, DOD OIG has used this authority
judiciously and sparingly. The Department of Health and Human
Services OIG also has testimonial subpoena power in certain
circumstances. Moreover, IGs overseeing appropriations under
the American Recovery and Reinvestment Act of 2009 received
TSA to be exercised through the now-sunsetted Recovery
Accountability and Transparency Board.
Following the practice of those IGs who already have or had
TSA, CIGIE is committed to ensuring that the authority will
be used appropriately and fairly. In short, CIGIE echoes
Ranking Member Cummings's belief that IGs would ``act
responsibly and use this authority only when absolutely
necessary,'' and that appropriate safeguards provide checks
on potential abuse.
THE NEED FOR TSA
While the current IG documentary subpoena authority under
the IG Act is a powerful tool, it is a tool with inherent
limitations. Most notably, Federal employees who are the
subjects of IG investigations can retire or resign while
being investigated. In such cases, limitations on IG
documentary subpoena authority or other IG Act authorities
can thwart IG investigations. For example, this could impact
the ability to pursue the investigations considered under the
Official Personnel File Enhancement Act.
These limitations have had negative, real world effects on
IG oversight and can impact Congressional initiatives. As
Chairman Gowdy has recognized, ``[y]ou're only as good as
your access to information and witnesses.'' An informal
survey of the IG community revealed TSA would have
strengthened IG oversight throughout the Federal government
as illustrated in the following examples:
One agency's OIG conducted an investigation of a senior
staff member who allegedly modified official documents and
impersonated an official, before retiring during the
investigation. The former senior staff member was not
receptive to being interviewed after retiring. Because the
OIG lacked TSA, the OIG could not compel testimony from the
retired senior staff member to conduct an effective
investigation.
In connection with an OIG's review of alleged safety issues
at an agency facility, the OIG was unable to interview the
central person identified in the allegation or that person's
supervisor since both had left Federal service and declined
voluntary interviews. The unavailability of those key
witnesses hampered the OIG's ability to fully investigate
alleged safety issues or to address a key objective of the
inspection, which was to identify factors that may have
contributed to leadership being unaware of those issues.
During another OIG's investigation into a small business
owner who received two Federal grants for overlapping
business proposals, key individuals declined to be
interviewed by the OIG. One of the employees confessed to
destroying company documents and creating new ones at the
request of the owner. After the confession, other individuals
involved declined to be interviewed. Without TSA or the
cooperation of another employee or the owner, the OIG was
unable to pursue obstruction and other potential charges
against the subjects.
Another agency's OIG faced obstacles when investigating
fraud associated with a loan program. The loan officer was
the only source of information to determine the individual
associated with the borrower. The OIG was unable to
effectively complete the investigation because the bank
declined to make the loan officer available for an interview.
A different OIG discovered a contractor was being paid for
services it did not provide, and only minimal information
could be collected through documentary subpoena authority.
Attempts to contact the contractor were unproductive. If that
OIG had TSA, the OIG could have compelled the contractor's
representative to be interviewed.
An OIG was reviewing third-party contractors retained by
the agency to provide healthcare services to eligible
individuals. The OIG could not determine if the contractors
provided proper notifications to individuals about their
eligibility for the services. Without the ability to compel
the contractors to testify, the OIG could rely only on
records, which did not contain specific information on which
to base conclusions.
Yet another OIG was unable to effectively examine potential
false and fraudulent billing after discovering an
unauthorized subcontractor was performing the majority of
work under a large contract. As the subcontractor was not in
a direct contractual relationship with the agency, the OIG
had to rely on documentary subpoenas. If that OIG had TSA, it
could have fully examined the potentially false and
fraudulent billing.
An investigation conducted on behalf of the Integrity
Committee was unable to obtain evidence from a former senior
level OIG employee who had retired from Federal service and
declined to speak with investigators. The investigation
concluded without the former senior level OIG employee's
evidence.
Another OIG encountered a significant obstacle while
conducting an audit where several former government officials
refused to be interviewed. Without the ability to compel
their testimony, the OIG had to report their refusal to the
appropriate Congressional oversight committee. Only after the
OIG reported this refusal to Congress did these former
government officials finally agree to be interviewed. If that
OIG had TSA, it would not have needed Congressional
intervention to complete its oversight work.
SUBPOENA PANEL AND OTHER PROVISIONS
With respect to the IG subpoena panel created in the bill,
and given the nature of the authority being granted, we
understand the interest of Congress in putting in place an
additional check on the use of TSA. While, in our view, the
provision is unnecessary, we do not object to its inclusion.
CIGIE requests, however, that two additional points related
to the language of the legislation be reconsidered. First,
the non-delegation clause in the proposed IG Act Section
``6A(b)'' may create problems for OIGs subject to the Federal
Vacancies Reform Act. Most relevantly, it could limit long-
serving acting IGs from exercising the authority when the
acting IG is no longer able to perform the ``duties and
functions'' designated solely to the IG. To avoid this issue,
we recommend that this provision be removed. Second, with
respect to the proposed IG Act Section ``6A(e)'', having the
CIGIE Chair issue guidelines to IGs, rather than promulgate
regulations, would achieve Congress's intent of standardizing
and governing the use of TSA without requiring CIGIE to
undergo a lengthy and resource-intensive rulemaking process.
Moreover, it will be more economical to update or modify
guidelines as needed.
SUPPORT FROM CONGRESS AND OTHER STAKEHOLDERS
The benefits of this legislation are reflected in the
support expressed by government oversight stakeholders for
providing IGs with TSA. Importantly, bi-partisan support for
providing IGs with TSA has come not just from the House
Oversight and Government Reform Committee, but also from the
unanimous consent it received in the House of Representatives
last Congress. Other important government oversight
stakeholders have also expressed how government oversight
would benefit from OIGs
[[Page H9072]]
receiving TSA. For example the Office of Special Counsel
wrote to Senate leadership describing how providing IGs with
this authority will enhance IG efforts to reduce government
waste and abuse, and how TSA has been helpful in reprisal
investigations undertaken by the Office of Special Counsel.
Nongovernmental organizations emphasized in a May 2016 letter
to Congress that OIGs are essential to a well-functioning
Government, and noted that providing access to agency
information, including through TSA, would allow OIGs to
conduct proper oversight. As evidenced by both Congressional
and stakeholder support, TSA will benefit the IG community in
carrying out its oversight operations.
CONCLUSION
CIGIE appreciates your continued support of our work and
the House Committee on Oversight and Government Reform's
efforts to improve government oversight through H.R. 4917. In
the decades since the IG Act's passage, IGs have saved
taxpayers hundreds of billions of dollars and improved the
programs and operations of the Federal government through
their independent oversight. Testimonial subpoena authority
would further improve the ability of IGs to detect and
prevent fraud, waste, and abuse in Federal operations. As
Representative Russell stated, ``Inspectors General are an
essential partner for Congress and by extension to we the
people that empower government,'' and ``we must provide
Inspectors General with the tools they need to fully
accomplish their mission. Testimonial subpoena authority is
one such tool, and a critical one at that.''
Thank you for your continued support of CIGIE and its
member IGs. We remain available to continue to work with you
and the Congress on the important issues addressed in this
legislation. If you have any questions, please do not
hesitate to contact me.
Sincerely,
Kathy A. Buller,
Chair, CIGIE Legislation Committee.
Mr. RUSSELL. Mr. Speaker, lastly, I would like to thank my Democratic
colleagues for their support and thoughtful dialogue, particularly the
gentleman from Virginia (Mr. Connolly) and the gentleman from
Pennsylvania (Mr. Cartwright), who sponsored this bill with me.
Mr. Speaker, I urge my colleagues to support the bill, and I reserve
the balance of my time.
{time} 1900
Mr. GOMEZ. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this bill would give inspectors general the ability to
subpoena witnesses to testify. This would be a significant new
authority.
Although I believe most IGs would act responsibly, it is important
that we include safeguards to protect against potential abuse of this
new authority.
This bill includes several such safeguards. The bill would require an
IG, before issuing a subpoena, to go through two reviews.
The first review would be conducted by the Council of Inspectors
General for Integrity and Efficiency. A panel of three council members
would have to approve the subpoena before the IG could issue it.
The second review would be conducted by the attorney general, who
would have the opportunity to block a subpoena if it would interfere
with an ongoing investigation.
The bill attempts to strike a careful balance in granting IGs the
authority to interview witnesses outside of the government while also
providing these important checks against potential abuse.
Mr. Speaker, I yield back the balance of my time.
Mr. RUSSELL. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, one of the chief complaints of the American people is
that we can't hold our government accountable. This bill goes a long
way to correct that.
In the future, no longer will people be able to simply walk away from
agencies and duties in government without any accounting. We have built
in the safeguards, and we have worked in a bipartisan way, so that we
can achieve that aim.
Mr. Speaker, I urge adoption of the bill, and I yield back the
balance of my time.
The SPEAKER pro tempore. The question is on the motion offered by the
gentleman from Oklahoma (Mr. Russell) that the House suspend the rules
and pass the bill, H.R. 4917.
The question was taken; and (two-thirds being in the affirmative) the
rules were suspended and the bill was passed.
A motion to reconsider was laid on the table.
____________________