Inspectors general want their temporary compatriots to have the same assurances of independence as those occupying a permanent post, according to testimony given at an Oct. 21 Senate Homeland Security and Government Affairs Committee hearing.
The committee is set to consider legislation next week, according to Sen. Rob Portman, R-Ohio, that would give IGs subpoena authority when carrying out their investigations, require the president to provide detailed rationale for dismissing an IG and mandate that any acting IGs are selected from among current senior oversight professionals.
And according to all three inspectors general testifying at the hearing, the last provision is the most important, as it preserves both the apparent and actual independence of those officials temporarily selected to fill a vacant IG position.
“Currently a president can fill a presidentially-appointed, Senate-confirmed IG vacancy with a political appointee or a senior official from the agency the IG oversees,” said Allison Lerner, IG for the National Science Foundation and Chair of the Council of Inspectors General on Integrity and Efficiency.
“Such appointments, which have occurred under both Democratic and Republican administrations, create actual and perceived conflicts of interest that undermine the IG’s independence and stakeholders’ confidence in its work; discourage whistleblowers from coming to the IG with evidence of fraud, waste and abuse; and create a disincentive for the president to appoint a permanent IG.”
And though the bill, as amended in the Senate, would not require the president to prove just cause in firing an IG, it would prevent the White House from defaulting to a vague “lost confidence” statement that has been used to justify several recent IG removals.
“I don’t think we should be satisfied with such a statement, no matter the party,” said Portman.
“Most importantly, frankly, it allows the public to understand the reasons for the removal,” said Department of Justice IG Michael Horowitz.
But Congress still needs to iron out the details of the provision that would allow IGs to issue subpoenas for testimony from federal employees that leave government service to avoid the scrutiny of an investigation.
Current federal employees are required to comply with IG investigations, but employees that leave prior to or in the middle of an investigation do not have to do so, even if the investigation involves their own misbehavior.
“If they refuse to testify or answer our calls, then the investigations are somewhat pointless,” said Kevin Winters, IG for Amtrak and the chair of CIGIE’s Integrity Committee.
But some committee members worry such an authority could be abused to harass former employees, especially those that cannot afford the legal fees to fight such harassment.
But any such subpoenas would have to go through several sets of approval, including through a judge to enforce it, before affecting the former employee. The CIGIE integrity committee would also serve as a check on subpoena abuse.
Horowitz noted the Department of Defense IG already has some subpoena authority and rarely has to use it, because they are incentivized to get people to volunteer testimony first.
One proposed option to mitigate subpoena abuse is to sunset the authority after a few years.
“Our preference would be to have our use of these authorities reviewed by an independent entity,” said Lerner, adding that if Congress felt that a sunset was necessary, the IG community would prefer a long period of time to prove the value of such a power.
The legislation empowering IGs passed the House in late June and must now make it out of Senate committee before receiving a full floor vote.
Jessie Bur covered the federal workforce and the changes most likely to impact government employees for Federal Times.