Court decision preserves the independence agency watchdogs need.
It is unusual for a member of a regulatory body to be pleased that a court overturned a decision by that body. Yet that is the position I find myself in with respect to a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit. In a victory for effective and efficient government, the court decided proposals concerning investigations conducted by inspectors generals are barred from collective bargaining.
Before I became a member, the FLRA had ruled that federal agencies and unions could bargain over proposals related to inspector general investigations. In reviewing the FLRA’s decision, the federal appeals court was required to resolve a conflict between two statutes that were passed more than 35 years ago—the Inspector General Act and the Federal Service Labor-Management Relations Statute. Siding with the Homeland Security Department and overruling the FLRA, the court determined that collective bargaining is “antithetical” to IG independence as established by the IG Act. Despite being a member of the FLRA, I believe that the D.C. Circuit got it right in this case. The cause of good government and the interest of the taxpayer will be well-served by this decision.
In 1978, Congress overwhelmingly passed the IG Act, which established the Office of the Inspector General in many agencies to combat fraud, abuse, waste and mismanagement in the programs and operations of the federal government.
The law’s provisions are devoted to establishing IG’s independence from the agencies they oversee. Under the law, agency heads cannot prohibit an IG “from initiating, carrying out, or completing any audit or investigation.” In addition, agencies must give IGs “access to all records, reports, audits, reviews, documents, papers, recommendations, or other material[s] available” related to the IG’s duties. Only the president can remove or transfer an IG from his or her position. Even then, the president must provide the reasons for such action to Congress within 30 days.
The D.C. Circuit’s decision protects this statutory independence—and the important work performed by IGs—by barring proposals concerning IG investigations from the collective bargaining process. As DHS stated in its brief to the court, collective bargaining would have “the ironic result of permitting” agencies and unions “to accomplish through collective bargaining precisely what the [IG] Act bars [an] agency head from doing—i.e., controlling the way an [IG] conducts investigations.” As DHS so aptly stated, “Congress could not have contemplated” when it passed the IG Act that the IGs’ independence, which it had so carefully and painstakingly created, would “be negated by collective bargaining.”
If agencies and unions could bargain over proposals involving IG investigations, the ability of IGs to investigate union corruption would be seriously undercut. IGs often partner with the Labor Department’s Office of Labor-Management Standards to investigate wrongdoing by union officials. In 2012, for example, following joint investigations by OLMS and Labor’s IG, a former president of the American Federation of Government Employees in Clever, Missouri, and a former president of the National Association of Government Employees in Alexandria, Virginia, both pleaded guilty to charges related to embezzlement of union funds. In 2013, OLMS and the Veterans Affairs Department’s IG determined that a former AFGE president in New York City had embezzled more than $110,000. These investigations would have been significantly hindered if unions, through collective bargaining, could place restrictions on IGs and the timing, techniques and procedures that they use.
The D.C. Circuit’s decision also contributes to, in the words of the Federal Service Labor-Management Relations Statute, the effective conduct of public business. IGs contribute significantly to improving the economy and efficiency of the federal government. In 2012, IG investigations resulted in more than 5,000 criminal prosecutions, more than 1,000 civil actions, and more than 3,000 personnel actions.
In recent years, IGs have uncovered significant wrongdoing in the federal government. Just last year, the Environmental Protection Agency’s IG determined that a former senior official had defrauded the agency of nearly $900,000 while pretending to work for the CIA. In 2013, an IG at the Treasury Department discovered that the IRS had used inappropriate criteria to identify tax-exempt applications for review, impermissibly basing such selection on the entity’s name or policy position. And, in the process of rebuilding after Hurricane Katrina, various agencies’ IGs investigated allegations of fraud, waste and abuse that led to 407 arrests and 225 convictions.
The D.C. Circuit’s decision is not just a victory for common sense, but it is also a victory for the taxpayer and those who believe in the importance of an effective and efficient government. As President Carter remarked after the passage of the IG Act, “the real damage of fraud and abuse cannot be measured just in dollars or cents, for the value of people’s trust and faith in their institutions of self-government are priceless.” By safeguarding the independence of IGs, the D.C. Circuit’s decision helps ensure that the purpose of the IG Act will be realized, and the Federal Labor-Management Relations Statute will not be used to complicate the work of IGs.
Patrick Pizzella was confirmed as a member of the Federal Labor Relations Authority in October 2013 and previously served as assistant secretary for administration and management at the Labor Department (2001-2009). The views expressed are his own.
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