Agency Watchdogs Could Get More Freedom to Roam

By Charles S. Clark

January 16, 2014

Given their dual-hatted role reporting both to agency heads and to Congress, inspectors general should be given new exemptions from privacy and paperwork reduction restrictions that allow employees under investigation to slow-walk access to documents and witnesses, a House panel was told on Wednesday.

“It is my hope that Congress will supply inspectors general with new tools” and reverse a trend that has been growing in recent years under the Obama administration, though not necessarily because of the president, said Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee, during the hearing.

“A lot of things are being discussed that we want to do, such as creating a pathway to testimonial subpoena power, cross-agency access and access to people who’ve left government,” Issa said, drawing support on most issues from IGs at the hearing from the Small Business Administration, the Peace Corps and the Justice Department, whose top auditor worked closely with Issa on the controversial probe of the “Fast and Furious” botched gun-tracking operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives.

Issa plugged his House-passed Digital Accountability and Transparency Act, an information technology reform bill that includes provisions exempting inspectors general from the 1980 Paperwork Reduction Act and the 1988 Computer Matching and Privacy Act. “We need allies in IG offices to be there for us,” he said.

Committee Ranking Member Rep. Elijah Cummings, D-Md., who also backs the DATA Act, warned, however, of a need to “balance” auditors’ needs with citizens’ rights. “I do not support granting our inspectors general unfettered power to subpoena individuals to compel them to provide testimony,” he said. “This would give to the IGs powers that even the FBI does not have, and the use of that authority could, in some circumstances, impede criminal investigations and raise significant civil liberties concerns.”

Cummings focused instead on what he sees as a need for greater resources for IGs, noting that the SBA inspector general has a double-digit vacancy rate, and the Justice IG last year had to eliminate 40 staff positions because of budget cuts.

SBA Inspector General Peggy Gustafson, who, like her two counterparts, also spoke on behalf of the inspector generals’ council, said the government’s 72 IGs in fiscal 2012 potentially saved the government $46.3 billion. Given their aggregate budget of some $2.7 billion, she said, “These potential savings represent about a $17 return on every dollar.”

But to ensure “independence and timely access to information,” IGs would benefit from relief from the Computer Privacy Act, the Paperwork Reduction Act and a broadened exemption to Freedom of Information Act restrictions, she said. The protections in those laws “are more aligned to the public’s interaction than to auditors.” While agency personnel “do fear and listen to us, they fear Congress more,” Gustafson said.

As for resources, “our budget is all personnel,” so because of the sequester, SBA’s IG office has a 17 percent vacancy rate, she added. “Morale has suffered tremendously because of the pay freeze and the shutdown. It’s a tough time to be a federal employee.”

Justice IG Michael Horowitz asked Congress to “strengthen” his office’s “timely access to all records the Office of the Inspector General deems relevant to review.” Most department employees cooperate with his staff, he said, but a few limit access in such areas as wiretap information and material witness warrants by citing other laws. Justice has a “special carveout” that too often allows its Office of Professional Responsibility to shut the IG out of cases involving attorney misconduct, he said.

IG offices would enjoy enhanced credibility if they were given more authority since they are run by a Senate-confirmed appointee, Horowitz said. He denied he is seeking “unfettered subpoena power,” saying protections, such as right to counsel, would be built in.

The Peace Corps’ top auditor, Kathy Buller, said her small, 26-person staff must address issues arising among agency volunteers scattered in 65 countries, including criminal misconduct. “We’ve encountered access issues and are currently at an impasse in a sexual assault case.” She said her agency is different because passage of the 2011Kate Puzey Peace Corps Volunteer Protection Act gives extra protections to Peace Corps employees as witnesses while simultaneously expanding IG access to documents. “When we can’t get documents, we feel we’re not being treated as professionals,” she added.

Lawmakers also questioned the witnesses on the current level of access to relevant materials provided by the Obama administration. Rep. John Mica, R-Fla., noting that he’d been conducting delicate congressional investigations for 22 years, said, “I’ve never seen such difficulty in getting information from an administration.” He asked the witnesses whether they agreed that Obama has “fine-tuned the art of slow rolling.”

All three IGs said they’re accustomed to slow rolling, and that it’s not specific to the current administration.

Rep. Jim Jordan, R-Ohio, used the hearing as an opportunity to ask the Justice IG to investigate the FBI’s recent decision to assign career Justice attorney Barbara Bosserman a central role in the ongoing investigation of the Internal Revenue Service for singling out conservative nonprofit groups for added scrutiny. Bosserman has donated to President Obama’s election campaigns. 

Horowitz offered no opinion, but Rep. Gerry Connolly, D-Va., asked Jordan if he would apply the same standard of avoiding such appearance of a conflict to J. Russell George, the Treasury Inspector General for Tax Administration who, the Democrat said, has written checks for President George W. Bush’s campaigns. “What is sauce for the goose is sauce for the gander,” Connolly said. 

Jordan was cut off by Rep. Jim Cooper, D-Tenn., who authored the 2008 Inspector General Reform Act that would be updated by Issa’s legislation.  “I know this is the ADHD Congress, but it’s time to get back to the topic of whether to expand IG powers,” Cooper said.  


By Charles S. Clark

January 16, 2014

http://www.govexec.com/oversight/2014/01/agency-watchdogs-could-get-more-freedom-roam/77039/